Administrative law is in flux and its doctrines flexible. Recent doctrinal shifts—like the ousting of Chevron and the introduction of the major questions doctrine—raise significant questions about how courts will determine the best reading of statutes and carve out a role for agency expertise in statutory interpretation. For environmental law, a field that relies heavily on federal agencies for implementation, the flux and flexibility of administrative law presents challenges. But they also present opportunities. On the one hand, the recent changes to administrative law pose a destabilizing and deregulatory risk for environmental law unless courts develop a consistent methodology for statutory interpretation. On the other hand, the recent changes provide an opportunity for administrative law and environmental law to function together better than they have in the past. This article offers a path forward that makes environmental law more stable and predictable. It does so by offering up a series of textually- defensible rebuttable presumptions that courts can use to guide their determination of the best reading of environmental statutes. These presumptions are meant to stabilize environmental law so that fundamental regulatory questions are not subject to the changing winds of agency deference or jurisprudential philosophies about the wisdom of the administrative state. These presumptions are also meant to make environmental law more predictable in a way that champions the vision of these laws at the time of their enactment—that is, as science-driven, technology-forcing, public interest minded, problem-solving precautionary statutes.
Geothermal energy holds vast potential for decarbonizing the U.S. energy system, yet the sector remains significantly underdeveloped, supplying only 0.4% of the nation's electricity. A principal barrier to growth is the fragmented and ambiguous legal landscape currently governing ownership of geothermal resources: thirty-three states lack any clear statutory or common-law framework identifying who owns subsurface thermal energy. This Article examines the physical characteristics of geothermal energy, recent developments in the U.S. geothermal sector, and the principal doctrinal approaches that might govern ownership of subsurface heat, including the ad coelum doctrine, common-pool and open-access frameworks, the rule of capture, and public ownership. It argues that geothermal energy’s fugacious, nonexcludable, and variably renewable nature makes conventional place-based private ownership difficult to justify or administer. The Article therefore advances two distinct models: (1) a regulated ownership-upon-capture regime, borrowed from oil and gas law, that treats geothermal heat as unowned until extracted; and (2) a public-ownership model that vests the resource in the relevant state or federal government while enabling secure, transferable use rights. Either approach, if paired with streamlined but robust regulation and clear access rules, could reduce legal uncertainty, protect land rights, attract capital, and support sustainable geothermal expansion nationwide and long-term energy security.
Since the Power Act’s passage in 1980, the government entities who develop and implement energy policy in the Pacific Northwest have operated under a congressional mandate to protect fish and wildlife in the Columbia River Basin. However, nearly half a century later, the number of wild salmon and steelhead returning to their native spawning grounds is still in decline, largely due to dam operations in the Columbia and its tributaries. This Note examines the history of hydroelectric power generation in the Columbia River Basin and its impact on fish populations, drawing parallels between the environmental crisis in the Columbia River Basin and the century of negotiations that resulted in the Great Lakes Compact in 2008. Against the backdrop of the current hyper-deregulatory administration, this Note argues that the four Columbia River Basin states—Idaho, Montana, Oregon, and Washington—should establish an interstate compact to address environmental harms imposed by dams in the basin. A compact would offer both a drafting process led by the states, who could tailor policies to their individual needs, and a federally binding solution to an environmental emergency that has remained unsolved for several decades.
There exists a type of expressive property outlaw—the guerrilla gardener. Guerrilla gardening is the practice of gardening without the legal right to do so. The practice of guerrilla gardening can sometimes take on rooted permanence, and as a result, progressively higher stakes. Guerrilla gardeners can operate over years, planting plots of greenery in areas where their hard work can be removed, quite literally, overnight. Many guerrilla gardeners operate with the implicit consent of their neighbors—consent that can be revoked at any time. However, when one bends away from the light insurrections of nonoffensive trespass and examines the other end of the spectrum, where guerrilla gardening can appear to create real property claims, guerilla gardening can germinate thorny issues of ownership and property.
This Article argues that addressing one of the most urgent environmental challenges facing humanity today—the global climate and biodiversity crisis—calls for a transformation at the heart of corporate law: its fiduciary duties. After demonstrating how current corporate fiduciary duties are implicated in this crisis, we argue for reform of fiduciary duties operating at two levels: those governing directors and officers of business corporations, and those governing institutional investors and asset managers. We then distinguish between two general kinds of corporate fiduciary duties: permissive and mandatory. We contend that corporate law should accommodate a more expansive understanding of fiduciary duties by either explicitly permitting climate- and biodiversity-related considerations or requiring their translation into measurable actions. Such an expanded view of fiduciary duties would allow or, in some cases, require corporate directors and officers, as well as institutional investors and asset managers, to consider environmental risks and impacts and to identify strategic opportunities to mitigate or adapt to them, while continuing to advance long-term economic performance. We conclude by outlining existing corporate fiduciary duty frameworks that include broader environmental considerations and identifying the expanding landscape of non-financial disclosure, reporting, and due diligence regimes as a promising direction for their further development.
Artificial intelligence (AI) has the potential to create major economic and social benefits, but also to rapidly escalate electricity demand and its associated environmental impacts. Information availability has been a cornerstone of environmental law for half a century, and this Article argues that providing information to individual, corporate, and other users about the electricity demand and environmental impacts of AI can reduce those impacts without delaying development of the technology. Little is known about how different large language models (LLMs) compare on these metrics, though. To address whether users have access to the information necessary to address this shortcoming, the Article provides the first comparison of the outputs of four AI environmental footprint calculators. The Article finds that inputting the same AI query into all four calculators produces substantial differences in footprint estimates, with one calculator producing an estimate more than 50 times higher than another for the same type of query. These differences suggest that substantial improvements are needed in the disclosure of AI model information, whether through international, national, state, or private standards, to provide reliable estimates of energy use and environmental impacts to users. In turn, more accurate, easily available information can create incentives for reducing the costs, energy demand, and environmental impacts of AI even in a deregulatory era.
The National Environmental Policy Act (NEPA), the “Magna Carta” of environmental protection, serves two important purposes: providing (1) decision makers and (2) the public with a federal agency’s assessment of the impacts that may occur from its proposed or selected course of action before the agency acts. Despite frequent criticism about NEPA reviews causing costly project delays, NEPA’s procedural requirements and framework had remained unchanged for more than 40 years. That all changed with the Fiscal Responsibility Act of 2023 (FRA). The writing on the NEPA wall is now very clear: agencies must now produce shorter NEPA analyses with a narrower scope in less time. This congressional direction is consistent with direction from the current Trump administration: permitting reviews must be efficient and timely to support critical national needs. Given recent executive and judicial actions, agencies must navigate the FRA changes to NEPA without the Council on Environmental Quality’s (CEQ) implementing regulations in place. Thus, while the streamlining requirements are clear, the implications for agency practice are not. Given how often agencies’ NEPA reviews are challenged, it is important for agencies and NEPA practitioners to have a better understanding of these requirements and how courts analyze them to ensure that the agency’s NEPA analyses withstand judicial scrutiny. To help understand how the FRA’s changes came to be, what those changes mean for agency NEPA practitioners, and how those practitioners can prepare environmental analyses that meet NEPA’s requirements, this Article (1) provides a brief history of NEPA to illustrate what led to the passage of the FRA; (2) highlights the FRA’s changes, exploring in depth the most significant changes and how some of the changes appear to codify judicial precedent; (3) discusses implications for agency practice; and (4) describes how the FRA’s changes may challenge agencies and increase litigative risk. Generally, this Article concludes that the FRA did not contain many surprises. Rather, it largely codified existing CEQ guidance and some agency practices and parallels or adopts recent executive and judicial actions. Further, the FRA added clarity in several areas and provided additional details about what is expected going forward for balancing the need to take a hard look at environmental impacts with the need for timely action. Finally, the Article recognizes that there is still much room for interpretation and time will tell how the courts will rule on post-FRA NEPA analyses and practices. What constitutes a reasonable hard look may remain a hard target to pin down, but courts and agencies now have a clearer roadmap for what, when, and how a NEPA review should be done. Further, NEPA’s core purposes have not changed––agencies and practitioners can and should move forward in a way that best protects the environment and humanity. And while there is uncertainty in how courts may rule, this Article provides recommendations on how to prepare an environmental analysis to withstand judicial scrutiny.
Two years ago, the Supreme Court slaughtered the Dormant Commerce Clause in its decision in National Pork Producers v. Ross. While the case is not explicitly about environmental law, it significantly affects environmental laws and policies, especially pertaining to state renewable portfolio standards. These state policies are especially prone to Dormant Commerce Clause litigation, given the interstate nature of electric grids. This paper argues that the scope of the Dormant Commerce Clause in light of this decision is appropriate for ensuring that states have adequate wiggle room in renewable energy regulation, but not an excessive amount of leeway so that it would hinder the national economy and disincentivize the production of renewable energy.
Armed conflicts have a significant and detrimental effect on the climate system, with considerable implications for efforts to mitigate and adapt to climate change and the civilian population. Yet the environmental provisions under the law of armed conflict (LOAC), drafted some half a century ago, struggle to adequately address these concerns. This article assesses the capacity of LOAC to address conflict-driven climate damage and its cascading impacts by characterizing these harms as environmental damage and as injury to civilians. The analysis highlights opportunities for broadening LOA C's scope and offers recommendations to enhance its capacity to address climate damage and indirect harms within its legal framework.
The Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo marked the end of Chevron deference, reshaping the framework that courts must use when reviewing agency interpretations of statutes. This Note examines the consequences of that doctrinal shift in the context of U.S. asylum law, where statutory ambiguity and agency discretion have long played a central role. Focusing on the “particular social group” (PSG) ground for asylum, this Note argues that Loper Bright requires courts to reclaim primary responsibility for interpreting asylum statutes. It analyzes how Chevron deference previously empowered the Board of Immigration Appeals to issue binding interpretations with significant human consequences and assesses early post-Loper Bright responses in the federal courts. Ultimately, the Note contends that a more rigorous, court-centered interpretive approach better aligns with both the principles underlying Loper Bright and the humanitarian obligations embedded in asylum law.
The rumble of traffic, the drone of air conditioners, the blast of construction equipment. These are the mundane sources of noise pollution that we all experience but rarely think about. Or, if we do think about noise pollution, we don’t think of it as a central piece of federal environmental law. This Article, however, demonstrates that noise law is, or was, central to American environmental law, and it offers insights into how environmental protection and administrative governance work today. In the 1970s, during the height of environmental activism and policymaking, lawmakers recognized noise as a serious pollutant alongside issues we continue to discuss today, such as dirty air, contaminated water, and biodiversity loss. The federal government built an impressive framework to tackle the problem, complete with science-based mandates, dynamic regulatory authority, and citizen suit provisions. But then something remarkable happened: it quietly fell apart. Through presidential neglect and civil society inattention, the fledgling noise control system collapsed. This Article shows exactly how this happened, revealing the political and administrative forces that can make or break regulatory programs. Three key components of noise law distinguish it from other environmental issues. First, by one line of thinking, noise pollution really isn’t “pollution” because noise waves are not tangible like particles and toxins, both of which trigger greater disgust reactions and sustain public attention. Second, Congress created fragmented control over noise governance, giving the Environmental Protection Agency supervisory authority but lodging important authorities within agencies across the federal government. Third, noise does not travel as far as many other pollutants and it does not accumulate in the environment or bodies, making it easier to escape—spatially and temporally—for those with the political and economic power to do so. This last component makes noise an especially acute example of an environmental injustice, which may also make it an especially easy problem for elites to overlook. Ultimately, this Article demonstrates that noise law serves as a revealing case study for understanding environmental policy and administrative governance broadly. Noise law offers insights into the dynamics of regulatory decline, the politics of environmental justice, and the difficulties of structuring administrative systems for complex public problems.
From the late 1800s until the 1950s, telecommunication companies across the United States utilized lead casing to protect their telecommunication lines. As technology developed and different types of plastic coatings were created, telecommunication companies phased out the use of lead cables. However, the lead cables remain in the air and buried in the ground, even continuing to provide telephone service for some. The failure to remove these cables, most of which are not in use anymore, has generated a slew of issues for the modem-day telecommunication companies that have inherited these cables from their predecessors. As the protective casing decays, a possible major environmental and public health issue has come from the cables' slow release of lead into the surrounding environment. Investigations and one large lawsuit have opened into the issue of the existing lead cables. But are the lead cables as dangerous as these investigations allege? A comparison of lead in different industries may show that the underlying issue with the lead cables is not as extreme as previously imagined. With allegations and investigations clouding the telecommunications industry, other industries' use of lead may be used to defend the existing business practices of leaving the lead cables in place. The evolution of lead regulation in other industries provides insight into the extent of regulation needed for the telecommunications sector as a comparison may reveal which regulation would be most effective for this current need. It has not been determined if the existing lead cables throughout the United States do pose a threat to environmental and public health. However, when the lead cables are eventually removed, regulatory bodies will likely need to provide some long-term plan for the removal process. This will likely need to be effectuated through assistance programs that help telecommunication companies remove the existing lead cables over an extended period of time, likely spanning many years. Nonetheless, courts and regulatory bodies will need to tread carefully into this area, as existing lead regulations provide merely a possible solution that can and should be improved upon later as the extent of the problem becomes clearer.
When European settlers first colonized the Americas, claiming Native land as their own, they largely believed their actions to be justified. To Europeans, property rights over land emanated from putting one's labor into that land, "improving" it by removing it from a state of nature. Absent such ''productive use," land had not been claimed and was therefore ripe for the taking. Yet while Native Americans had labored significantly and fundamentally shaped the land around them, European settlers deemed the Americas to be in a state of nature. Such attitudes towards Native American labor and property rights reveal a strikingly limited conception of ''productivity": one encompassing activities that dominate and develop wilderness, but not those that preserve it. European settlers viewed exploited land as generating economic value, but deemed uncultivated nature essentially worthless. Over the course of the nineteenth-century, the view that undeveloped nature lacked value and that only a specific type of productivity should result in property rights motivated the development of a property law system that heavily favors those who develop, rather than conserve, preserve, or restore their privately-owned wildlands. And while today our desire for land development has been tempered by a compelling interest in wilderness preservation, a limited, nineteenth century conception of productive use remains entrenched in modern American property law. Doctrines like nuisance, waste, and adverse possession continue to award stronger property rights to those who engage in environmentally destructive practices, incentivizing wilderness destruction. In the face of climate change, this poses a problem; undeveloped landscapes like forests and grasslands are potent carbon sinks, whose capacity to offset carbon emissions is of enormous value to society. That value is threatened by a doctrine that disincentivizes the preservation of America's remaining privately-owned wilderness. In this Note, I explore how reimagining this aspect of property law could better protect the environment. While much of the harm caused by the productive use doctrine's bias towards wilderness development is irreparable, we can and should reduce future harm. Doing so will not require the productive use doctrine to be eliminated in its entirety; rather, our definition of ''productivity" should be updated to reflect society's interest in preserving what privately-owned wilderness remains. This could be done, in part, by incorporating the value of carbon sequestration into the balancing tests courts apply when hearing property law disputes, compelling courts to weigh the value of a proposed development against the value generated by a piece of land's carbon sequestration capacity. Doing so could help counterbalance property law's current bias in favor of environmental destruction, creating an incentive to protect privately-owned natural lands and combat the climate crisis.
A recent burst of revisions in the bedrock regulations governing projects that may adversely affect wildlife represents a generational shift in policy. Streamlining federal decision -making drove much of this reform. Streamlining offers a path to address climate change without abandoning a longstanding commitment to wildlife conservation. The conservation community recognizes the need to build new infrastructure to reduce the rate of climate change through air emissions. The most urgent priority is decarbonizing the electrical ~rid through renewable energy generation and a better transmission network. Adaptation to the "new abnormal" of climate-driven environmental disruption demands federal approvals for a host of other habitat-disturbing programs, from coastal redesign to wildfire management. Regulatory requirements that slow or stop such projects are no longer as desirable for wildlife as in the past. Wildlife law should speed approvals and better coordinate disparate programs without sacrificing statutory objectives, such as recovery of species on the brink of extinction. Streamlining attempts to redirect regulatory analysis to early stages of decision -making, broader landscape scales, and impacts that are likely to generate greater risk to wildlife. Rulemakings employ two principal tools to achieve this shift. First, they limit coverage by replacing effects-based liability triggers (such as take prohibitions) with activity-based compliance (such as locating and operating projects in a particular manner). Second, they centralize key decisions through programmatic analysis and planning, which allows for more rapid project-specific decisions. These reforms provide a roadmap for revival and extension when the political winds shift back toward addressing climate change.
The rapid advancement of technology, including artificial intelligence (AI), is creating new challenges for judicial review under the Administrative Procedure Act (APA). In late 2023, federal administrative agencies publicly disclosed over 700 use cases of AI that employ sophisticated techniques like machine learning and natural language processing. While the APA's flexible judicial review framework certainly allows agencies to utilize new technologies, the APA also requires explainability of agency decisions; thus, agencies must be able to articulate the reasoning and methodology behind AI-enabled decisions for the purpose of judicial review. This Article examines APA judicial review as it applies to agency adoption of AI by examining how courts have previously assessed agency predictive and computer models. It summarizes current federal agency AI use cases and techniques and proposes an Lil report card." This report card is designed to direct judicial review towards essential attributes of AI implementations, ensuring courts focus on evaluating the training data, model design, intended uses, validation practices, and performance metrics of AI models. Through this lens, the Article seeks to offer a structured approach for courts in assessing the rationality of agency decisions informed by AI models under the arbitrary and capricious review standard.
Transgressions of federal environmental law involving significant harm or culpable conduct can result in criminal prosecution. However, we know very little about how such prosecutions have taken place within EPA Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. We undertake a content analysis of 2,807 criminal prosecutions that resulted from U.S. EPA criminal investigations from 1983-2022, selecting all 392 prosecutions occurring within Region 5 for analysis. Results show that over $3.4 billion in monetary penalties, 1,039 years of probation, and over 492 years of incarceration were assessed at sentencing. 33 % of prosecutions centered on water pollution, 23% on hazardous substances, 21% on air pollution, and 17% on state-level crimes, with a majority of prosecutions taking place in Ohio and Michigan. We conclude by offering recommendations for enhancing criminal enforcement, such as expanding funding for core operations and creating stronger connections with state and local environmental agencies.
Meeting the Biden administration's goal of cutting greenhouse gases by at least 50 percent from 2005 levels by 2030 will necessarily require transitioning the U.S. energy system away from carbon-intensive fossil fuels like coal. However, coal plants that are retiring early in states with regulated electricity markets usually still have undepreciated book value that has not yet been recovered from ratepayers. If not handled correctly, these "stranded assets" could have financial consequences for utility companies and cause them to actively oppose the energy transition. This Note aims to evaluate possible solutions to this problem. Through the prism of ratemaking legal standards, it will examine the four most commonly proposed approaches: accelerated depreciation, the creation of regulatory assets, cost disallowance, and ratepayer-backed securitization. While finding that there is no one-size-fits-all solution, this Note will nonetheless conclude that ratepayer-backed securitization shows the most promise because it can fairly compensate utility companies, control rate increases, and accelerate the energy transition.
The federal government engages in massive amounts of informal adjudication - a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. This article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances and then adopt them as procedural regulations. The process by which federal agencies engage in informal adjudication should be accurate, efficient, and perceived by stakeholders to be fair.
Environmental groups and their allies have seen two of the bedrock statutes of modern environmental law (the Clean Air Act, Clean Water Act) eroded through recent decisions from the Supreme Court. At the same time, political polarization around climate policy- the gap between Republicans and Democrats on whether worsening global warming merits a response- is wider than it has ever been. Despite these dispiriting headwinds, there are some encouraging counterpoints of recent climate progress in politically conservative communities. The heart of this essay is simply sharing these stories so we can learn from them. I label the advocates who succeeded in promoting solar-energy development in Batesville, Arkansas and Evansville, Indiana as "climate whisperers" for their talent in bringing unlikely allies to the table. What they seem to have in common is that they excel at listening for listening's sake- by which I mean listening to community members' concerns with humility and without judgment. Finally, I conclude that these climate whisperers have important lessons to teach lawyers and law students looking to work on environmental advocacy. Building off of the work of the community lawyering movement, I recommend that the most immediate task for climate lawyers is to develop the skills of good listeners. While the American Bar Association's Model Rules of Professional Conduct have largely overlooked these skills, they strike me as essential to ethical lawyering in this context.
