Environmental Law
Article
The Water District and the State
In much of the American West, local special districts with undemocratic governance structures and archaic boundaries dominate water governance. In some places, they are expanding their reach into new policy realms. This Article explains how these governance systems evolved, why they are problematic,…
Forum
Can We Save Our Foodways? The Inflation Reduction Act, Climate Change, and Food Justice
This Essay examines USDA programs supported by the Inflation Reduction Act and its approach toward addressing climate change and historical funding inequities for Indigenous and Black Farmers. It also argues for how the next Farm Bill can expand upon these efforts to further address inequities and …
Forum
The Power of Tribal Courts in Ongoing Environmental-Tort Litigation
The groundbreaking environmental tort-litigation across the country has overlooked the potential role of tribal courts. Using an original empirical analysis of over 300 cases, this Essay outlines tribal-court jurisdiction over environmental-tort cases in the wake of attacks on tribal sovereignty in …
Forum
Remand Without Vacatur in a Changing Environment
A court reviewing unlawful agency action, in deciding whether to “remand without vacatur,” considers the two factors of legal deficiency and undue disruption. Surveying diverging approaches to balancing these factors in environmental cases, this Essay proposes a reframing of the test that draws on p…
Forum
Water Rights of Public Domain Allotments
This Essay argues that public domain allotments (PDAs) are Indian Country and entitled to federal reserved water rights. By comparing federal statutes creating allotments and using the Indian Canons of Construction, the Essay uses California as a case study to show that PDAs have rights to water out…
Feature
Neutralizing the Atmosphere
“Net zero” is the new organizing principle of climate action—but can it create politically, socially, and ecologically durable results? This Feature critiques net zero’s atomizing structure and sidelining of racial and social justice concerns. Its analysis offers pathways for improving public net-ze…
Note
State Water Ownership and the Future of Groundwater Management
Many states claim to own their water. How to understand such claims is a perennially muddied question which the Supreme Court recently failed to clarify. This Note demonstrates why states can have literal ownership of their water, and why a contrary conclusion could imperil groundwater management in…
Forum
Climate Change and Challenges to Self- Determination: Case Studies from French Polynesia and the Republic of Kiribati
This Essay examines effects of climate change and related phenomena on self-determination through two case studies. The case of French Polynesia highlights effects on people’s right to freely dispose of their natural resources. The case of the Republic of Kiribati demonstrates how a defeatist narrat…
Forum
Environmental Justice and Tribal Sovereignty: Lessons from Standing Rock
The Standing Rock protests represent the latest iteration of longstanding tribal dissent against an environmental law framework that overlooks their interests. This Essay contends that the environmental movement’s failure to advocate for the restoration of tribal sovereignty has also left intact a l…
Note
Presidential Administration and the Durability of Climate-Consciousness
Climate change presents unique governance problems. The Obama Administration attempted to allay some of these challenges through procedural requirements throughout the federal bureaucracy that entrenched scientific analysis and expertise. This Note documents those requirements and posits that they m…
Article
The Perils of Experimentation
More than eighty years after Justice Brandeis coined the phrase “laboratories of democracy,” the concept of policy experimentation retains its currency as a leading justification for decentralized governance. This Article examines the downsides of experimentation, and in pa…
Forum
Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking
How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreig…
Forum
Democracy and Legitimacy in Investor-State Arbitration
In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department’s ref…
Forum
Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State
**This is the third in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ. For Professor Richard Epstein's response, see here. For Professor Jonathan Zasloff's res…
Forum
Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming
**This is the first in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ.**
In Prods and Pleas, Benjamin Ewing and Douglas Kysar claim that the American legal sy…
Article
Prods and Pleas: Limited Government in an Era of Unlimited Harm
121 Yale L.J. 350 (2011).
Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertai…
Forum
AEP v. Connecticut’s Implications for the Future of Climate Change Litigation
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “th…
Forum
A Tale of Two Climate Cases
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In July 2004, eight states, the City of New York, and a number of conservation organ…
Forum
Climate Justice and the Elusive Climate Tort
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) clo…
Forum
Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
Article III standing has three seemingly simple components: (1) the plaintiffs must …
Forum
AEP v. Connecticut and the Future of the Political Question Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
Whether and how to apply the political question doctrine were among the issues for w…
Forum
What Litigation of a Climate Nuisance Suit Might Look Like
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly le…
Forum
The Dirty Climate Debate
Climate change has become the hottest environmental debate in decades. It could also go down as the dirtiest—and not just politically. As legislators, regulators, pundits, and stakeholders debate the question of whether or not to regulate greenhouse gas emissions, the regulatory uncertainty that t…
Article
The Politics of Nature: Climate Change, Environmental Law, and Democracy
119 Yale L.J. 1122 (2010).
Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwi…
Note
Environmental Economics: A Market Failure Approach to the Commerce Clause
116 Yale L.J. 456 (2006)
Congressional authority to enact environmental legislation has been called into question by recent Supreme Court cases suggesting that Commerce Clause regulation is valid only if Congress is regulating economic activity. This Note proposes a market failure approach to guide t…
Article
Good Governance at the Supranational Scale: Globalizing Administrative Law
115 Yale L.J. 1490 (2006)
This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administr…
Note
Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity
113 Yale L.J. 1909 (2004)
I. THE NEED TO REASSESS REGULATED RIPARIANISM
Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." During the past few decades, however, water has i…
Comment
Turning the Endangered Species Act Inside Out?
113 Yale L.J. 947 (2004)
Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used…
Comment
A Missed Opportunity: Nonprofit Antitrust Liability in Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc.
113 Yale L.J. 533 (2003)
The antitrust laws are meant to govern and promote competition. But how antitrust law should treat nonprofit organizations, whose objectives lie outside the commercial sphere but whose actions nevertheless have economic consequences, is not settled. The Fourth Circuit recent…
Note
Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act
112 Yale L.J. 2553 (2003)
I have suggested the incorporation of amortization provisions as a potential solution to the continued emissions problem posed by coal-burning electric utilities built prior to the original Clean Air Act. Thirty years after the Act's passage, these problematic sources have n…
Essay
Probability Neglect: Emotions, Worst Cases, and Law
112 Yale L.J. 61 (2002)
In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…
Note
State Courts, Citizen Suits, and the Enforcement of Federal Environmental Law by Non-Article III Plaintiffs
110 Yale L.J. 1003 (2001)
Note
The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age
110 Yale L.J. 333 (2000)