• Selected
• Entire List

Abstract:
The article explores the objectivity and replicability of on-the-ground forest assessment as it pertains to forest certification and adaptive ecosystem management. It analyzes the role that science plays in three forest auditing regimes by examining and comparing the two most significant forest certification regimes in the U.S., then drawing from that study to assess the monitoring and evaluation requirements established under the new U.S. Forest Service regulations. The article ultimately evaluates the strengths and weaknesses of the regimes in order to recommend changes that could provide a more uniform and reliable basis for measuring and informing sustainable forest management.

Abstract:
In this Article, I argue that U.S. courts should make greater use of the norms established in the United Nations Framework Convention on Climate Change (UNFCCC) and other components of the international climate change regime when deciding how domestic laws apply to issues arising from climate change. This argument develops from the rapid growth of international environmental law in recent decades, as well as the increasingly intertwined relationship of international and domestic legal systems in several issue areas.

Over the course of the nation's history, U.S. courts have regularly employed international and foreign sources. Dualist views of the U.S. Constitution have become predominant, however, and recent U.S. Supreme Court references to foreign and international sources in several human rights cases stirred exceptional controversy. The controversial nature of such citations in recent cases is unfortunate because it tends to obscure the value of domestic judicial interaction with international regimes.

U.S. courts are facing an increasing number of cases that address some aspect of the U.S. response to climate change. In virtually all of these cases, most notably Massachusetts v. EPA, courts have formally addressed only issues of domestic law. Nonetheless, the cases impact issues of global concern and are decided in the shadow of an international legal regime, especially given the United States' failure to adopt significant national climate change policies.

U.S. courts could enhance the value of their decisions, both domestically and in the international arena, by directly engaging international climate change norms. The UNFCCC's requirement that countries take measures to stabilize greenhouse gas concentrations, for example, is directly relevant to formally domestic cases decided by U.S. courts. Explicitly engaging the international norms where they are relevant would (1) enhance the United States' standing and influence in negotiations toward a post-2012 climate change regime, as well as promoting "soft power" in other areas, (2) benefit the international regime by providing a concrete application of its core precepts, (3) develop a baseline legal framework that would encourage consistency both within the domestic U.S. legal system and across domestic legal systems addressing the same threats, and (4) further the judicial role of providing a check on mixed national-international regulatory activities. In order to advance these goals, I outline one possible approach to incorporating international climate change norms into domestic U.S. cases.

climate change, Kyoto, UNFCCC, domestic litigation, international norms, environmental

Abstract:
The article examines the implications of the development of collaborative approaches to the Endangered Species Act for public interest environmental lawyers. It begins with an overview of traditional, "rule of law" environmental lawyering, then explores the rise of more collaborative approaches to environmental regulation. Next, it discusses how these trends have played out in the Endangered Species Act context. It notes that some environmental NGOs have adopted an approach that embraces collaborative efforts for advancing environmental protection while others have remained focused on a confrontational, litigious approach. From there, the article examines the interplay of the two approaches in several specific examples and draws lessons about how the two routes of advocacy can compliment each other to achieve greater results than either approach on its own. Finally, the article outlines a strategy that includes specialization of NGOs and cooperation between the two specialties, which could be used to more effectively advance environmental goals.

Abstract:
In this symposium piece, I analyze potential implications of Massachusetts v. EPA for environmental litigation by focusing on the Court's approach to justiciability and EPA's non-statutory arguments. The Court recognizes interdependence of environmental systems and incorporates that recognition into standing doctrine more completely than any previous Supreme Court opinion. Further, the majority opinion virtually embraces the global scientific consensus on climate change despite EPA's assertion that residual uncertainty weighed against regulation of greenhouse gas emissions. Third, the Court directly addresses, for the first time, the relationship between domestic agency action and global environmental problems. These trailblazing aspects of the case, taken together, suggest the possibility of greater incorporation of global environmental considerations into domestic environmental litigation in areas of global concern, such as climate change or biodiversity. In that sense, Massachusetts v. EPA presents a globalism rarely, if ever, seen in Supreme Court opinions on environmental cases.

Massachusetts v. EPA, standing, climate change, consensus, globalism, Supreme Court, environmental law

Abstract:
The issue that frames the case study in this Article is whether hatchery-bred salmon are the full equivalent of naturally-reproducing salmon for purposes of assessing the species' viability. The issue carries great importance for the Pacific Northwest, as similar issues do for regions throughout the country. Indeed, salmon decisions are but one of numerous contexts in which implementation of the ESA has raised fundamental questions concerning what groupings should qualify as a species under the statute, the broader aim of the statute, and the shape of biodiversity policy more generally. For species as diverse as the Florida panther and the western cutthroat trout, the agencies implementing the ESA have faced questions akin to the challenge of defining the relationship of wild and hatchery salmon. Their responses have been inconsistent, generating extensive litigation and agency review. This Article aims to explain the problem, define the components of the natural world that the law should aim to protect, and offer suggestions for incorporating this understanding into the existing statutory structure.

Biodiversity, Ethics, Salmon, Hatchery, Endangered Species Act, Nature, Science, Alsea, NMFS

Abstract:
Negotiations at Copenhagen are expected to address the design of a mechanism for reducing emissions from deforestation and forest degradation (REDD) for inclusion in a post-Kyoto agreement. Several country proposals and non-governmental assessments suggest that REDD may have significant benefits for biodiversity. This article observes that such benefits are closely aligned with the adaptation goals of the climate change regime. However, adaptation goals will not necessarily benefit from, and may in fact be harmed by, a REDD mechanism focused solely on carbon value. Therefore, this article proposes that the REDD mechanism include specific incentives for biodiversity-enhancing projects. The article discusses the details of administering a “biodiversity-enhancing” designation and suggests two types of incentives that should attach to the designation as a means of supporting biodiversity-enhancing projects and attracting investment.

climate, biodiversity, forests, credits, trading, Copenhagen, REDD