By: Bonnie Smith, Staff Editor, Vermont Journal of Environmental Law. This piece is part of the Environmental Law Review Syndicate. Please leave any comments here, as this is the original post.
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 Oliver Jamin, Online Editor of Lewis and Clark Law School's Evironmental Law. This post is part of the Environmental Law Review Syndicate, and any comments should be made on the original post, which can be found here.
By Maryam Al-Dabbagh, a Graduate Editor of NYU Environmental Law Journal. This post is part of the Environmental Law Review Syndicate. To leave a comment, please follow this link.
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.
By Helen Marie Berg, General Member of the Michigan Journal of Environmental & Administrative Law. The original post can be viewed here. Please leave all comments on the original post.
In January 2016, Michigan Governor Rick Snyder appealed to the federal government for a $96 million emergency aid grant in response to the tremendous and growing public health crisis in Flint, Michigan. City and state officials caused the crisis. They decided to switch the city’s drinking water source from Lake Huron to the Flint River, but failed to add the proper anti-corrosion treatment to the lead pipes that distribute water to the city’s 100,000 residents. That decision caused the lead to leach from the pipes, ultimately poisoning all who drank the city’s water.
By Will Grossenbacher
Will Grossenbacher is a 3L at the University of Virginia School of Law where he served as Editor-in-Chief of the Virginia Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.
From October 2–5, 2015, the State of South Carolina, and the City of Charleston in particular, experienced historic rains: sites in the Charleston area reported up to twenty-six inches of rain. The downpour combined with high tides to create flooding that closed dozens of streets throughout the City. Then, at the end of October, Charleston experienced the fourth-highest tide ever recorded in the City. Persistent winds combined with the bi-monthly spring tide to create a high tide that reached 8.7 feet above mean lower low water level in Charleston Harbor. The two unrelated events in the same month show just how vulnerable the City is to flooding. When rising sea levels and other climate-change-induced flooding are added to the mix, the flood risk will only increase, especially for the Charleston’s numerous historic properties.
Charleston is a city rich in historic resources. In fact, the City’s Historic District contains more than 1400 “historically significant buildings.” Additionally, of the seventy-seven National Historic Landmarks (“NHLs”) in the State of South Carolina, thirty-three are located in Charleston. While the City of Charleston has begun working to address flooding issues, it has yet to address specific climate-change-related threats to its historic resources. Charleston should therefore look to the example provided by other coastal cities and begin implementing law and policy changes designed at protecting historic resources from the impacts of global climate change.
By Eric Anthony DeBellis
Eric DeBellis is a 3L at Berkeley Law, where he is Senior Executive Editor of the Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate. Any comments to this piece should be posted here.
The overwhelming majority of environmental enforcement actions settle out of court, but overlooking settlements as merely a mechanical means to save time and court costs is a mistake. An agency’s approach to settlement has tremendous environmental justice implications that go largely unnoticed.
In a traditional enforcement settlement model, the government claims the exclusive right to speak for the people. It brings an enforcement action against the defendant, and the two parties negotiate a penalty amount. The defendant signs a settlement agreement and pays the penalty to the Treasury. This is the “Speeding Ticket” settlement model. This model is expedient, but it excludes affected communities. The Speeding Ticket model remains the norm today, but several state and federal agencies have begun to explore an alternative tool: the supplemental environmental projects (SEP).
Scalia's Swan Song: The "Irreconcilability Canon" Resolves the Clean Air Act's Section 111(d) Drafting Error and Encourages Good Lawmaking
By Brenden Cline,
Brenden Cline is a 3L at Harvard Law School where he serves as Editor-in-Chief of the Harvard Environmental Law Review. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.
[This] is a ‘rare case.’ It is and should be . . . . But every generation or so a case comes along when this Court needs to say enough is enough.
— Chief Justice Roberts
As my law school graduation nears, I’d like to advance a common-sense argument for the Clean Power Plan’s statutory authority that only a law student could make: the D.C. Circuit and Supreme Court should reject EPA’s and challengers’ strained readings of the duplicative amendments to Clean Air Act section 111(d) and instead follow the late Justice Scalia’s “irreconcilability canon” to give these amendments no effect. To date, just one brief filed in the torrent of Clean Power Plan litigation mentions the irreconcilability canon in passing. I think this interpretive tool warrants more attention.
So quit the jiggery-pokery, put down the applesauce, and take your head out of a bag. Justice Scalia may no longer be with us, but his immortal words endure.
By Myles Osborne
Myles Osborne is a first-year law student and a General Member on the Michigan Journal of Environmental & Administrative Law. He hopes to practice in California. Reach him at firstname.lastname@example.org. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.
In late October 2015, the Southern California Gas Company’s Aliso Canyon Natural Gas Storage Facility began spewing natural gas into the air over the San Fernando Valley at a rate of 110,000 pounds per hour. Composed primarily of methane, a “short-lived” climate pollutant with twenty-five times the global warming impact of carbon dioxide, the leak effectively doubled the methane emissions rate for the Los Angeles Basin. With substantial environmental costs and several botched attempts at containment, the leak did not escape comparisons to 2010’s disastrous Deepwater Horizon oil spill as stinking clouds of methane entered the atmosphere, displacing families and businesses in the nearby community of Porter Ranch
By Stacy Shelton
Stacy Shelton is a student at Vermont Law School where she serves as a Staff Editor on the Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.
“If climate change continues unabated and as rapidly as a few models predict, saving at least some species will require solutions more radical than creating parks and shielding endangered species from bullets, bulldozers, and oil spills: It will require moving them.”
What the Supreme Court’s Stay of the Clean Power Plan Means for the EPA’s Greenhouse Gas Regulation Moving Forward
By Ben Harris
Ben Harris is a 3L at the UCLA School of Law where he serves as Executive Editor for the UCLA Journal of Environmental Law & Policy. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.
The Clean Power Plan (“CPP”), announced and promulgated in late 2015 by the Environmental Protection Agency (“EPA”) and backed by President Barack Obama, seeks to develop a comprehensive regulatory scheme over the nation’s power plants in an effort to promote cleaner energy development and reduce greenhouse gas emissions. On February 10, 2016, the Supreme Court granted a petition to stay the Clean Power Plan until a legal challenge against it can proceed on the merits. This post 1) provides a short overview of the CPP, 2) explores the history of CPP litigation and the Supreme Court’s recent decision to stay, 3) predicts the future outlook of the CPP, and 4) provides an alternate arrangement by which the EPA could conceivably seek to regulate greenhouse gas emissions in the event that the CPP is struck down.
About the ELRS:
The Environmental Law Review Syndicate (ELRS) is a collaborative effort of the nation’s leading environmental law journals that provides an outlet for student scholarship and fosters academic. ELRS operates as a cooperative syndicate: each week a different student submission is selected for publication on the websites of all member law reviews.