Author name: hlselr

By Caitlin Troyer Busch, Stanford Environmental Law Journal.

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Introduction

The Endangered Species Act (ESA) is both lauded and criticized as one of the most powerful environmental laws ever enacted. Proponents of the law praise it for protecting thousands of endangered species over the last forty years, while detractors argue it is a bureaucratic mess that no longer benefits humans, but instead overburdens private landowners and development and values species’ needs above human needs. These claims reflect the disparate values underlying the statute itself. At the time of the Act’s passage, some proponents pushed for endangered species reform on the belief that species have intrinsic value—that is, value that “an entity has in itself, for what it is, or as an end.” Others believed that the value of endangered species lay in their instrumental value to humans, as “means to a desired or valued end,” such as agriculture. Despite these distinct values, the Act was passed in 1973 with little to no opposition. A wide range of stakeholders with differing environmental values came together to craft a far-reaching and unprecedented environmental law. This lack of opposition demonstrates that the Endangered Species Act successfully captured both sets of values in a single, comprehensive environmental statute.

By Bonnie Smith, Staff Editor, Vermont Journal of Environmental Law.

This post is part of the Environmental Law Review Syndicate. The original post will be available on VJEL’s website later today.

For the first time in the history of international climate negotiations, adaptation has its own article in a legal text. Even more striking is that loss and damage, historically treated as a component of adaptation, does too. For many years, negotiations concerning adaptation and loss and damage have been contentious between developed countries, which prioritize mitigation over adaptation and loss and damage, and developing countries uniquely vulnerable to the impacts of climate change. Chronicling the controversial discussions and negotiations leading up to these monumental Paris Agreement articles reveals still-existing tensions between Parties to the Agreement. It also sheds light on negotiable points for future Conferences of the Parties (“COPs”).

Adaptation, mitigation, and loss and damage are three interconnected concepts pertaining to climate change. Defined simply, “adaptation” is the “adjustment of behaviour to limit harm, or exploit beneficial opportunities, arising from actual or expected climate change.” In contrast, “mitigation” seeks to limit climate change, primarily by reducing greenhouse gas emissions. “Loss and damage” encompasses the costs associated with climate impacts that adaptation and mitigation cannot prevent.

This article will begin comparing the historical treatment of adaptation and loss and damage with mitigation in the context of international climate change negotiations. Then, the article will analyze the Paris Agreement’s treatment of adaptation and loss and damage.

By Olivier Jamin, Online Journal Editor, Environmental Law (Lewis & Clark Law School)

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Introduction

The public trust doctrine (PTD) is a concept under which states have the duty to preserve certain natural and cultural resources for the benefit of the public. The PTD is a common law doctrine, and state courts around the country have spent the last three decades applying — and in some cases rejecting — it to a variety of natural resources. For example, the New Jersey Supreme Court applied the PTD to beaches and shores, the California Supreme Court applied it to navigable streams and their tributaries, and the U.S. Supreme Court has held that states own fish and game within their borders on behalf of their citizens, a position followed by many states. However, the most traditional application of the PTD has been to tidal and submerged lands. Oregon has been slow to develop its application of the PTD, as illustrates the lack of case law. Professor Blumm explains that although Oregon courts have repeatedly announced broad public rights in all waters of the state, the courts have not addressed the PTD since 1979. Last year however, the PTD was the topic of a circuit court opinion in Lane County that could mandate the Oregon Supreme Court to define precisely the extent of the doctrine in the state. The decision is highly controversial as it constitutes one of the most restrictive approach to the PTD, as to its scope and duties. The plaintiffs, Kelsey Juliana and Olivia Chernaik, represented by Our Children’s Trust, a non-profit organization advocating for greater reduction of CO2 emissions, appealed the decision last summer, gathering support from local law professors. Because the decision gave an erroneous overview of the PTD in Oregon, the court of appeals, and possibly the Supreme Court should seize on this opportunity to clarify the scope of the doctrine in the state.

By Maryam Al-Dabbagh, Graduate Editor of the NYU Environmental Law Journal

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In the lead-up to the Paris talks, the issue of loss and damage (L&D) was portrayed to be one of the biggest hurdles in the quest for an agreement. L&D had already suffered multiple drawbacks in previous talks, such as the mass walkout by G-77 countries at COP19 in Warsaw in protest of the response by developed countries to their demands for L&D. Surprisingly, no similar issues occurred in Paris; instead, the agreement articulated a middle path between the seemingly divergent aims of developing and developed countries. This paper will trace that path through an analysis of the L&D articles of the agreement, and set forth the headway as well as the challenges that should be expected in coming years.