While Professor Villa and I did not coordinate, there is good synergy between our talks.1 Mine is going to be focused on the ecological impacts of wildfire. The reality of the fire experience, as you just heard from Professor Villa, is that the ecological, the social, and the political are completely intertwined and inseparable. As a result, this talk will spill into arenas that are more than the basic ecology or the environmental impacts of large-scale wildfire.
Disaster Justice reflects the intersection of environmental justice and disaster law. The study of disaster justice is becoming increasingly essential as disasters become more frequent and devastating in the face of accelerating climate change. Disaster law is marked by statutes such as the federal Stafford Act and by theory such as the "disaster cycle" of readiness, response, and recovery. Environmental justice recognizes that the distribution of harms such as bad air or water quality may be distributed inequitably among groups such as low-income populations or racial minorities. In similar fashion, the adverse impacts of disasters may also be distributed inequitably among certain groups. Through a series of case studies, this article explores concerns for disaster justice in contexts including Hurricane Maria in Puerto Rico (2017), the Hermit's Peak/Calf Canyon Fires in New Mexico (2022), the Maui Wildfires in Hawai'i (2023), Hurricane Helene in North Carolina (2024), and the L.A. Fires in Southern California (2025). Through these case studies, the article attempts to distill lessons learned as the growing threat of disasters requires increasing preparation to keep all people safe from harm.
A heavily understated dimension of cosmopolitanism is the urban rural divide. This is particularly true in the context of modern economics, which emerged at the same time that the notion of cosmopolitanism was gaining renewed political significance. This paper examines how economic thought of the late eighteenth and early nineteenth centuries directly influenced the socio-literary interactions of a "World Republic of Letters" and how writers such as Goethe used terms like "universal spiritual commerce" to valorize the role of the city in the making of a new modern world. The paper also describes how the rural was left behind in this global social project, including its special relationship to nature, which occurred at a time when scientific advancements were replacing the role nature played in everyday life. Using the example of the Hermit's Peak/Calf Canyon Fire of 2022, the article suggests that natural disasters, such as wildfires, remain dominated by an urban cosmopolitanism logic and that an updated "rural cosmopolitanism" is required to address the return of nature into geopolitics.
In New Mexico, the water law of prior appropriation rules. As a result, no individual holds a complete right to ownership of water in New Mexico. Instead, New Mexico landowners hold only a right to put appropriated waters to beneficial use. Appropriation of waters requires diversion, a distinct feature that prevents landowners from claiming natural watercourses flowing through their property boundaries. The unappropriated waters of the state are then vested in the state via public trust, to be used and enjoyed by the public. This public right to use often abuts landowner property rights, as water flows over and through the boundaries of private property. The stage is set for two competing property interests-a public right to the reasonable enjoyment of the state's waters, and a private right of landowners to exclude others in the pursuit of the efficient use of their property. The right to exclude is a core stick in the bundle of rights possessed by landowners that can often be asserted without rhyme or reason. In 2018, the New Mexico State Game Commission promulgated N.M.A.C., Section 19.31.22, a regulation recognizing landowners' robust right to exclude the public from non-navigable streams within their property lines, creating a legal means to privatize sections of New Mexican water. This practice of privatizing New Mexico's streams was unequivocally rebuked by the 2022 New Mexico Supreme Court ("NMSC") decision in Adobe Whitewater Club of New Mexico v. New Mexico State Game Commission. The decision, relying on the 1945 case State ex rel. State Game Commission v. Red River Valley Co., reaffirmed the public's property rights in the unappropriated waters of the state. This Note summarizes the history of public use rights in the non-navigable streams of New Mexico and the consistent adoption of Spanish colonial surface water law by the successive sovereigns of the New Mexico territory. The Note then analyzes the stark contrast between the consistent substantive surface water law of New Mexico with the claimed historical practices of recognizing riparian water rights in the state. In furtherance of this analysis, the Note discusses Sanchez v. Torrez, a current federal case challenging the enforcement of the Adobe Whitewater decision and the federal trial court's opinion which reaffirmed New Mexico's state sovereign prerogative to dictate the surface water law within its territory.
Wildfire is a game-changer for both communities and ecosystems throughout the West, including in New Mexico. Building resilience to increasing numbers of wildfire events, especially when wildfires can shift communities, ecosystems, and combined social ecological systems ("SESs") past tipping points and into new regimes requires new approaches to governance. Focusing on the ongoing response, this Article examines post-fire needs before surveying new modes of governance that can help to address those needs in a climate change era. It ends with a summary of our engagement with the participants in the "Life After Fire" Symposium to assess whether and how these new modes of governance are emerging as responses to wildfire in New Mexico.
In 2022, New Mexico experienced its worst documented wildfire season on record, and the Hermit's Peak/Calf Canyon Fire was the largest among them. Over 340,000 acres of Northern New Mexico burned, devastating a multi-generational, subsistence community. In response, Congress passed the Hermit's Peak Fire Assistance Act, the second-ever act of its kind to provide full and expeditious compensation forwildfire damage. Yet, more than four years later, many community members still have not received any funding and litigation continues over whether the Act is meant to provide noneconomic damages. This Comment outlines the steps of the rulemaking process to argue that whether a community feels heard by an agency is integral to an act's ultimate effectiveness. In response to the Hermit's Peak/Calf Canyon Fire, the Federal Emergency Management Agency largely copied the regulations promulgated under the Cerro Grande Fire Assistance Act, legislation passed two decades prior to compensate the wealthiest community in New Mexico after a Forest Service fire. As a result, the Federal Emergency Management Agency adopted an initial rule that was unresponsive to the distinct needs of the communities of Mora and San Miguel Counties. Culture should be a central component of effective disaster response and recovery.
Large-scale, climate-driven wildfire has become a recurring and foreseeable feature of life in the American West, creating longterm consequences forforests, watersheds, and rural communities. The 2022 Hermit's Peak/Calf Canyon Fire, the largest wildfire in New Mexico history, provides an opportunity to examine how a federally created compensation statute functions once a climate disaster moves from legislation and rulemaking into adjudication. Sparked by prescribed burns on public land, the fire led Congress to enact the Hermit's Peak/Calf Canyon Fire Assistance Act, directing the Federal Emergency Management Agency ("FEMA") to provide expeditious and just compensation for injuries resulting from the fire. Building on observations first presented at the University of New Mexico School of Law's Life After Fire: (Re)Imagining Post Fire Recovery for Headwater Dependent Communities Symposium, this Article examines the Act's implementation at the claims and appeals stage. Rather than revisiting the statute's design or FEMA's rulemaking process, the Article offers a post-enactment case study with implications for future wildfire compensation programs across the West by focusing on how compensation has been adjudicated in practice: how FEMA has interpreted New Mexico law, how land-and resource-based losses have been valued, and how courts have addressed disputes arising from those determinations. Drawing on claim outcomes, administrative appeals, and developing case law, the Article analyzes two areas where adjudication has proven especially contested: reforestation and revegetation claims, and noneconomic damages for smoke, ash, evacuation, and loss of use. These disputes reveal the limits of market-based valuation and administrative efficiency when applied to losses that implicate subsistence use, watershed stability, intergenerational land stewardship, and community-wide harm. By examining how land-based and noneconomic harms are valued, or discounted, in practice, the Article situates wildfire compensation as a question of procedural justice and substantive equity in the adjudication of climate-driven loss. As climate change renders large-scale wildfire increasingly foreseeable on public lands, the experience of Hermit's Peak/Calf Canyon demonstrates that disaster compensation regimes must be capable of accounting for natural resources and land-based livelihoods as lived conditions, not merely as damaged property.
There is no greater threat to our public lands than energy dominance. The 1906 Antiquities Act gave presidents the power to proclaim national monuments on public lands, and today the federal government protects over 11 million acres as national monuments. President Trump plans to revoke and shrink monument protections so that these lands can be used for oil, gas, and mineral drilling, destroying cultural artifacts with detrimental impacts to air, water, and land. The Antiquities Act does not give the president the power to revoke or shrink national monuments designated by prior presidents; the Act reserves this power solely to Congress. Using statutory interpretation and separation of powers principles, this Article argues that the president lacks a revocation or modification power addressing argumentsreaching the alternative conclusion and that such action by the president is reviewable by the judiciary. Although monument revocation or modification by the president is unlawful, there is currently no established standard for judicial review of monument revocations, leaving those harmed by these unlawful acts without redress and the courts struggling to enforce the law against the president. This Article proposes and applies a threepart test for judicial review of presidential monument revocations and modifications based on existing case law and constitutional principles, demarcating clear exceptions for presidential action that can be raised as an affirmative defense and protecting the separation ofpowers while ensuring that the president is not above the law.
The national forests of the eastern United States are where and what they are today based in good part on a mistake. When they were being acquired and established in the early twentieth century, hydrology was in its infancy. Yet many hydrologists and their students in government were promising that these forests would provide significant protection from floods. They promised more than they should have. Forests as protection from floods were embroiled in a contentious and prolonged factual inquiry almost immediately thereafter. Indeed, that inquiry would later mature into a distinct scientific subfield, forest hydrology, that went on to influence how we govern-and do not govern- watersheds today. This article traces that maturation and the co-evolution of the federal laws of forestry, flood control, and watershed governance with forest hydrology, geomorphology, and other branches of hydrologic science. It reveals important lessons for today's intersections of law and scientific inquiry, especially for legislation that rests on unproven hypotheses.
Tracing the evolution of the "rights of nature" movement from Indigenous law and early environmental ethics to modern global applications, this article reframes the debate around codification of legal rights for nature from moral theory to legal efficiency, arguing that the United States implicitly recognizes rights of nature within its environmental jurisprudence and statutory framework. Through detailed analyses of the Endangered Species Act, National Environmental Policy Act, Clean AirAct, and Clean Water Act alongside corresponding case studies, the author demonstrates how courts and Congress have already expanded standing, redefined injury, and recognized nature's inherent right to exist and flourish. These cases reveal a consistent judicial pattern: plaintiffs bring claims on behalf of ecosystems under existing environmental statutes, and courts that interpret such statutes according to legislative intent and use plain readings effectively uphold nature's inherent rights. The article concludes that formal federal recognition of nature as a legal person with standing would not represent a radical shift, but rather a logical and more efficient codification of the principles already embedded in U.S. environmental law.
When individuals commit pesticide crimes involving significant harm or culpable conduct, they may be prosecuted for criminal violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), but we have little knowledge of how individual offenders have been prosecuted historically for such crimes. Using content analysis of 2,728 environmental crime prosecutions resultingfrom U.S. EPA criminal investigations, 1983 to 2021, we select all cases of individuals prosecuted under FIFRA for our analysis. We find that 100 cases were adjudicated, resulting in 135 years of probation, 75 years of incarceration, and $4.2 million in monetary penalties assessed at sentencing. Of those prosecutions, 62 percentfocus on off-label use ofpesticides, 36 percent unlawful distribution, 1 percent unlawful disposal, and 1 percent falsification of documents or testing fraud. We offer recommendations in our conclusions for strengthening the enforcement of pesticide crimes under FIFRA.
This Note examines New York's climate goals under the Climate Leadership and Community Protection Act (CLCPA) by comparing two pivotal energy solutions: nuclear energy and microgrids. Microgrids remain notably underexplored in legal scholarship, particularly their potential to achieve compliance with the CLCPA. By analyzing the economic, environmental, regulatory, and public perception challenges associated with nuclear energy and microgrids, this Note argues that microgrids offer a safer, more flexible, and sustainable option for accelerating New York's path toward its green energy future. This Note evaluates microgrid projects across New York, along with common critiques regarding the scalability and viability of hybrid approaches, such as integrating Small Modular Reactors (SMRs). The discussion also addresses the potential long-term role of nuclear fusion in supplementing microgrid infrastructure. Finally, the Note surveys current regulatory incentives and legal obstacles associated with microgrid deployment and contends that New York's policy and regulatory framework should prioritize microgrids as the foundation for meeting its renewable energy objectives.
The global effort to mitigate climate change increasingly relies on widespread electrification, with lithium-ion batteries at its core and the key minerals required for their production concentrated in countries uniquely vulnerable to exploitation. Lithium-ion battery production relies heavily on cobalt, a critical mineral primarily sourced from the Democratic Republic of the Congo (DRC), which supplies approximately 70 percent of the world's cobalt. As demand for cobalt is projected to rise sharply, the DRC has become indispensable to the global clean energy transition. Cobalt extraction in the DRC is closely linked to severe human rights abuses, including forced labor, child labor, hazardous working conditions, environmental contamination, sexual violence and forced displacement, all of which raise serious ethical and legal concerns about the sustainability of current supply chains. This article examines the intersection of natural resource governance, climate policy and human rights by analyzing how global dependence on cobalt perpetuates systemic exploitation in the DRC. Moving beyond existing scholarship, it evaluates why current governance mechanisms fail to convert ethical commitments into meaningful protections for cobalt miners. The article assesses four regulatory frameworks-domestic (DRC), international, third-party and voluntary market-based initiatives-demonstrating their collective inability to ensure transparency, accountability and enforceability across the cobalt supply chain. It concludes by briefly identifying two overarching reforms necessary to reconcile climate objectives with human rights and to advance a more equitable model of natural resource development.
The Radiation Exposure Compensation Act ("RECA"), which offers one-time payments to designated individuals who have developed specific diseases and cancers due to radiation exposure, was set to expire on June 10, 2024. On March 7, 2024, the U.S. Senate passed Senate Bill 3853 ("S. 3853"), the "Radiation Exposure Compensation Reauthorization Act" which would continue RECA payments for an additional six years and would allow for more individuals to be eligible for these payments. However, the bill has not become law because it is still pending review by the U.S. Congress. One of the groups that would be eligible for these expanded RECA benefits are New Mexico downwinders and their families. Downwinders include individuals who live "downwind" from nuclear weapons testing sites. Even though New Mexico was home to the development and testing of the atomic bomb, families who have developed diseases and cancers from radiation exposure in New Mexico are not eligible for compensation under RECA. This note explores the history of the RECA legislation and theorizes why New Mexicans were originally excluded. It also demonstrates the work that the New Mexico Tularosa Downwinders Consortium has done alongside numerous supportive lawmakers to lobby for the expansion of RECA yet, despite this advocacy and bipartisan support, S. 3853 still hangs in the balance to become law.
The world's hydroclimate has become more extreme in the last several decades-a phenomenon described in technical terms as the loss of stationarity. Focusing particularly on the drought-induced stresses, this Article examines water governance in the American West and Australia seeking aspects in the laws, institutions, and approaches of each nation that could be adapted to advantage by the other in coping with the onset of reduced flows in major river basins-most prominently, the Colorado in the U.S. and the Murray-Darling in Australia. Significant similarities of history, settlement of arid regions, and legal systems abound. These include Anglo settlement bringing riparian water law to the continents, surprisingly similar land and water resource distributions, federal systems in both nations vesting state primacy over natural resources subject to subservience to the national government in certain regards, the 19th century settlement of the more arid areas of the interior, and now the 21st century water shortage conditions being faced. Together these similarities both invite comparison and make transference of governance institutions feasible. The advocated changes are non-trivial. The major suggestion for Australia is for their courts to force greater accountability of the states to the areas in which the Commonwealth has used its overarching authority to set a higher bar for performance by the states than has been achieved so far. In the U.S., for more than a century, the Supreme Court has established itself as a major force, constraining the states from pursuing self-interest to the detriment of their neighbors and national interests. Australian courts have been far more passive. As seen in a famous high visibility U.S. Endangered Species Act case, the Australian courts should see this as simply enforcing the law as written, not being more activist. More radically, this Article calls for replacing prior appropriation with the water governance system chosen by Australia more than a century ago and updated significantly by the National Water Initiative in 2004 and the Commonwealth Water Act 2007. At the beginning of the 20th century, when it was apparent that riparianism was ill-suited to its inland climates, the Australian states adopted an entitlement/allocation system in which water users' entitlements are like shares of the whole and the whole is a variable amount based on water year projections about how much water will be available. Thus, in Australia shortages are, in essence, borne by all water entitlement holders; in the U.S. under prior appropriation, juniors (those whose water use began later in time) get no water if that is what is necessary to protect the senior appropriators in receiving their full water right. At the beginning of the 21st century, Australia took the further step of protecting riparian environments through a planning process that divided waters between a consumptive pool and an environmental pool that recognized both the importance of ecosystem services and the national commitment to protect Ramsar wetlands. Almost needless to say, making changes in either system that result in reallocation of water when water is short entails the question of whether those receiving less water after the change are entitled to compensation. In Australia, the courts have been deferential to the authority of government to allocate water as a sovereign prerogative and have not found violations of the Commonwealth's constitutional protection of property. In the U.S. , any change trenching on property "rights" raises questions of whether property has been taken for public use without just compensation. Although the change advocated here might seem a sure victory for the water rights holders making takings claims, there is surprisingly little on-point case law. Saliently, Supreme Court precedents support the conclusion that a change to the Australian entitlement/allocation system would pass constitutional muster. The general rule of non-compensation, however, should be tempered by what the Australian system calls risk allocation, where a subset of water use reductions attributable to governmental policy are compensated. In sum, this Article argues for a two-way transfer. On the Australian side, it advocates for greater judicial superintendence of governmental adherence to the law as written and intended. On the U.S. side, it advocates adoption of the Australian entitlement allocation system and its set aside for an environmental pool. Both nations stand to benefit greatly.
The impact of pesticides on farmworkers is at the intersection of environmental and labor law. Existing federal regulations designed to protect farmworkers from pesticide exposure and illness have failed to adequately do so. While some states have tried to fill these gaps by enacting state regulations, New Mexico is not one of them. However, by borrowing and combining regulatory protections from other states, New Mexico could become a leader in this area. This note first provides a detailed summary of the federal protections and the regulatory history while summarizing criticisms from farmworker advocates. Next, it provides a comprehensive overview of regulations from Oregon, California, Texas, and Florida that fill federal gaps to better protect farmworkers. Finally, this note discusses how New Mexico should use these other state regulations to improve the health of farmworkers and communities. Though focused on New Mexico, this note provides a resource framework that could apply to other states seeking to improve farmworker labor conditions.
The shift to a low-carbon economy will require a massive build out of low-carbon technologies, which in turn will require millions of new laborers with specific skills. Similarly, the decline of fossil-fuel industries will require retraining and new job opportunities for laborers in these fields. At the same time, there is an emerging scholarly focus on a "just transition" to a low-carbon economy. This essay conceptualizes inclusive workforce development as a key component of a just transition. Inclusive workforce development promotes policies that reach and effectively serve the broadest possible range ofpeople and communities. In particular, inclusive workforce development policies reach and effectively serve marginalized and disadvantaged communities that are often "left behind." Using New Mexico as a case study, this essay identifies research questions for further work in this nascent sub-field, including: 1) developing new conceptual frameworks of workforce development that move beyond traditional tools of retraining workers or preparing workers for careers in expanding industries in green energy; 2) research to evaluate the effectiveness of recent federal and state workforce policy innovations; 3) research to understand why worker participation, especially among difficult-to-reach workers, is low in current workforce programming and governance; and 4) assessing the facilitators and barriers of current workforce development systems in attracting additional industries, including the green sector, to more fully participate in their efforts.
As human activities continue to accelerate the extinction of species, federal and state programs emerge as some of the last solutions to wildlife protection in the United States.1 Since the establishment of the Endangered Species Act ("ESA") in 1973, the U.S. Fish and Wildlife Service ("the Service") has designated occupied and unoccupied critical habitats for threatened and endangered species as part of the species' recovery plan.2A recent U.S. Supreme Court case signaled that courts are less willing to grant the Service the same deference to designate areas as critical habitats as before.3 Because the ESA never defined "habitat,"the Court required an area to first be "habitat" before it could be "critical habitat."4 This tension led to multiple changes to the definition of "habitat"-from the first Trump administration to the Biden administration to the current system of leaving "habitat" undefined.5 Under the current system, the Service can designate areas that species never occupied before as critical habitat, including, but not limited to, modifying and restoring an area.6However, leaving "habitat" undefined opens the floodgate for more critical habitat designation litigation. A workable solution that would reduce litigation is to concentrate on principles of conservation biology in the Service's Candidate Conservation Agreements ("CCAs") and Candidate Conservation Agreements with Assurances ("CCAAs") to identify and protect the ecosystems on which species depend before such species are listed. The principles of conservation biology are also applicable to critical habitat designations. This Article explores the challenges and opportunities of leaving "habitat" undefined and whether CCAs and CCAAs with a conservation biology framework are the appropriate tools to reduce critical habitat designation litigation while promoting biological diversity.
The Public Utility Regulatory Policies Act of 1978 (PURPA) was passed in the 1970s to advance the United States' energy independence through the encouragement of energy conservation, energy efficiency, small power production, and competition within the energy industry. Administered by the Federal Energy Regulatory Commission (FERC), it allows energy producers whose facilities qualify under its criteria to buy and sell electricity to larger-scale energy producers at rates set by state agencies. Today, PURPA and FERC's accompanying regulations do not allow for facilities that run on nuclear fuel to qualify as "small power production facilities." Though these facilities could still qualify as "cogeneration facilities," the circumstances under which they could do so are more restrictive. This Article advocates for an amendment to PURPA that would allow certain nuclear facilities to qualify as "small power production facilities," keeping in mind the potential for small-scale nuclear reactors to expand the potential applications of nuclear energy. Doing so would be in line with PURPA's policy objectives and is an issue ripe for consideration given the federal government's recent uptick in interest regarding nuclear energy.
