Environmental Law Review

In an age of pervasive environmental crisis, a vast majority of the world’s constitutions now include environmental provisions. But how does environmental constitutionalism improve environmental governance? Constitutionalization tells us little about how states should manage the environment. Instead, environmental constitutionalism is capable of many different meanings and legal forms. This Article draws out three different paradigms: liberal- conservative, technocratic, and transformational. Each paradigm corresponds to a different set of legal institutions, constitutional provisions, and approaches to interpretation, making drastically different demands of constitutional drafters and judges. Environmental constitutionalism calls for urgent and high-level action, without revealing a clear agenda for environmental governance. Before answering its call, we should demystify its meaning.

Environmental constitutionalism’s near universal turn to rights and courts presents another danger. Like all forms of constitutional entrenchment, such a turn comes at the expense of democratic participation. But it is precisely this high energy democracy that is necessary to truly transform the institutions which have brought us to environmental crisis. This Article argues for the reconstruction of environmental constitutionalism as constitutional environmental democracy. Drawing on traditions of popular and political constitutionalism, constitutional environmental democracy emphasizes the role of participatory institutions outside the judicial branch. This Article sketches out a future research agenda centered on legislative mandates, deliberative assemblies, and constitutional experimentalism. In the Anthropocene, constitutions matter: but they matter beyond the world of rights and courts.

 

Proposals to amend the Federal Rules of Civil Procedure are typically modest in scope or seek to address changing technology. However, recent major hurricanes and the COVID-19 pandemic have pushed the Judicial Conference to consider how the Rules should work in emergencies. The resulting Rule 87—which officially became effective on December 1, 2023—effectively creates alternative versions of select rules when the Judicial Conference makes a finding of an emergency within a judicial district. Although the proposed rule is a step in the right direction, continued attention to the challenges civil litigation faces in the climate change era is necessary.

This Article examines the vulnerability of the Federal Rules of Civil Procedure to climate change and offers a framework for continued adaptation of the Rules to an uncertain world. The Federal Rules, like many areas of the law, rest on assumptions of societal and climatic stability. Climate change threatens this fundamental “stationarity.” Therefore, this Article takes the first steps in an adaptation analysis for the Federal Rules, beginning with the core procedural values that an adaptation plan should protect and an overview of existing stressors to those values. The Article then provides an analysis of how climate change disasters will further undermine efforts to achieve those procedural values. Using natural disasters of the last fifteen years as case studies, the Article evaluates how the growing intensity, frequency, and unpredictability of climate change disasters will exacerbate existing civil procedure stressors and undermine its stationarity assumptions. The Article concludes with recommendations for both a better approach to reforming civil procedure and some specific actions courts and the Judicial Conference should take to address climate disasters. Importing the adaptive management theory to the Judicial Conference will allow the Federal Rules to capitalize on their preexisting resilience and adaptive capacity without risking the widespread use of maladaptive strategies in civil cases after climate disasters. Given the acceleration of climate change and the ever- present need of society’s most vulnerable populations to use the courts to secure benefits and protect their rights, such an approach to adapting civil procedure is critical for achieving the Federal Rules’ underlying aims.

 

The landscape of urban food production is changing. Urban agriculture is a broad term that includes a wide variety of economic and social activities related to the cultivation, processing, and distribution of agricultural products in urban and peri-urban areas. Traditionally, urban agriculture takes the form of home gardens, raised soil beds, hoop houses, and community gardens located in urban areas, where growing conditions remain subject to the natural surrounding environment including soil conditions, sunlight, and climate (this type of urban agriculture can be referred to as “traditional UA”). More recently, technological advancements have led to newer growing methods where plants are placed in soilless controlled environments that are isolated from those natural conditions. Coined “controlled environment agriculture” (CEA), this form of urban agriculture relies on a combination of plant science and environmental control techniques to optimize plant growth inside an enclosed space (usually indoors), in which the producers use technology and data to maintain ideal growing conditions. Unlike most traditional urban agriculture, controlled environmental agriculture is usually a highly-capitalized, commercial form of production that does not originate at the individual household or community level.

Urban agriculture provides environmental, economic, social, and health benefits to the communities in which it is located, and traditional UA has a longer track record of creating these positive effects for communities than does CEA. Cities around the United States are using a variety of tools and planning measures to promote urban agriculture and reap the rewards of these benefits for their communities. These planning strategies, though, mostly support only traditional UA or are otherwise not designed to account for CEA, despite fundamental differences from traditional UA.

CEA is a promising new form of urban agriculture that will likely become a mainstay in urban environments in the near future. However, for CEA to have a lasting impact, it must achieve tangible benefits for urban communities like its traditional counterpart. Municipalities with an interest in growing CEA could do so by utilizing the various legal and real estate-related planning tools already used to support traditional UA. But even though traditional UA and CEA both fall under the “urban agriculture” label, using these tools in the same way may be ineffective. Rather, municipalities should consider these two forms of urban agriculture separately when using these regulatory tools because the practical functions of these forms of agriculture are very different, and because each form will have its own unique relationships with urban communities. Indeed, regulators should exercise caution when designing programs that support CEA because of its shorter history when compared to traditional UA, and because of the unknowns surrounding how CEA could contribute to negative community effects like gentrification and displacement.

Previous scholars have examined the impact of urban agriculture on community economic development generally, and have critiqued it for its links to gentrification and displacement on urban communities. Other scholars have examined, through community stakeholder interviews, the tension in certain cities between longstanding traditional UA practices and the introduction of certain forms of CEA. This Article is the first to examine CEA, consider its potential impacts on community economic development, and provide insight into how cities can approach the introduction of CEA into their urban frameworks while being cautious of its potential for negatively impacting existing communities.

 

Establishing a Legal Guardian to Protect the Public’s Rights in Oregon’s Natural Resources After Kramer and Chernaik

Where is the environment in environmental law? People often assume that “the environment” exists only outdoors. Although seemingly benign, this assumption can affect when, how, and how effectively environmental law and policy address indoor and outdoor environmental quality. This piece identifies, explores, and interrogates the assumption of “outdoorsiness” that underlies environmental law and policy, and considers the source, sense, and implications of creating sharp legal and regulatory discontinuity between indoors and out. It concludes that excluding indoor environments from the bailiwick of environmental law is a mistake, influenced by subconscious psychological phenomena that obscure indoor hazard and by romantic but inaccurate accounts of humans as separate from nature. Expanding understanding of the human environment to encompass indoor and outdoor spaces can align legal treatment of the environment with the reality of the human habitat, while providing opportunities to more clearly, comprehensively, and effectively achieve environmental goals.

Within the current legal landscape, this Article makes the “business case” for more environmentally and socially sustainable animal agriculture by large corporate entities. First, the Article details the negative externalities associated with industrialized animal farming operations, including high levels of greenhouse gas emissions as well as water and air pollution. The Article then highlights the significant human health issues related to industrial animal agriculture as well as how big animal agriculture contributes to structural racism, and subjects animals and farm workers—who are overwhelmingly marginalized persons of color—to misery on a daily basis. Next, the Article points out that industrial animal operations potentially lead to greater incidences of food borne illness, antibiotic resistance, and the development of other novel pathogens that could facilitate the next pandemic or even bio-terrorism. Against the backdrop of these circumstances, the Article describes the federal government’s failure to adequately regulate industrial animal farming facilities, including under the Clean Air and the Clean Water Acts — both of which provide expansive regulatory tools. Alongside these federal regulatory lapses, the Article discusses and analyzes California’s Proposition 12 regarding humane animal housing and the recent US Supreme Court decision upholding
Proposition 12, as well as other state laws on animal farming. Ultimately, this Article proposes that our continued heavy reliance on these industrial “farm” operations, given the adverse impact they have on the environment, human health, and communities, does not make sense. The Article thus proposes a multi-faceted framework to address the adverse effects of industrial animal agriculture in the U.S., involving consumer pressure, media exposure, stricter federal regulation, and a massive corporate buy-in. The argument proceeds that there exist real social, environmental and even economic benefits for the U.S. economy to turn away from industrial animal farming as it exists today. To successfully accomplish this, corporate actors must recognize the “business case” for more humane and less intensive animal agriculture—albeit with the right to sell their products at a higher price.

COMMENTS

Federal public lands along the United States southwestern border are a platform for regulatory disputes concerning the proper management of natural resources, infrastructure, human activity, and border security. U.S. border policy in recent decades has been characterized by the criminalization of the immigration system, which has led to increased border enforcement on public lands. This increased enforcement activity impacts both the livelihoods of refugees and migrants coming to the U.S. across the border, as well as environmentally sensitive ecosystems. This Comment explores how U.S. border policy interacts with public land protection and examines the conflicting interests and mandated responsibilities of relevant agencies. It argues that the mission conflict between U.S. Customs and Border Patrol and federal land management agencies results in a systematic prioritization of border enforcement over the protection of public lands. This Comment also discusses the legal implications of a systematic prioritization of border enforcement, suggesting that the ultimate consequence of interagency mission conflict is the formation of a “monster crimmigrator,” exacerbating the crimmigration system.

Do Re Mi: Workers’ Inclusion in Environmental Justice

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