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ARTICLES

Western Water Law and the Challenge of Climate Disruption

Dan Tarlock

In the past six decades, the West has had to adapt to three challenging changed conditions, all of which have impacted the allocation and use of water and thus western water law. First, the West has transitioned from a commodity production colony to the most urbanized region in the country. Second, the environmental movement created the demand for legally protected instream uses. Third, fiscal and environmental pressures ended the Big Dam Era, and thus, the federal government no longer back-stops state water rights with new, subsidized carry-over storage reservoirs. Today, the West must adapt to a fourth changed condition, global climate change or global climate disruption. Previous adaptation strategies are an imperfect guide to coping with climate disruption, which projects a wetter, warmer West with less dependable available water supplies to supply a growing population, high-value agricultural areas, and the conservation of aquatic ecosystems. Adaptation planning is well underway in the West, but comparatively little attention has been given to how the projected changed climate will impact western water law. This Article surveys four possible impacts as the competition among cities, farms, and fish increases. We can leave prior appropriation alone because it is a complete risk-allocation system which will force the necessary allocation changes. In the alternative, we can negotiate around old prior by voluntary reallocations to provide more water for cities and instream uses. Aggressive public trust litigation can also reallocate water, primarily for aquatic ecosystems. Finally, we can abolish prior appropriation and replace it with tradable volumetric entitlements. The Article concludes that prior appropriation will remain the allocation framework for the foreseeable future. But, it will be increasingly supplemented by market pressures combined with innovative out-of-the-box solutions which will push agriculture to consider alternative cropping patterns, less intensive uses, and new sharing patterns.

Emissions Trading Versus Pollution Taxes: Playing “Nice” with Other Instruments

David M. Driesen

Traditionally, scholars debating the choice between emissions trading and a pollution tax as environmental policy instruments have not considered interactions between policies. Instead, they consider these environmental protection instruments in isolation. But governments usually do not rely on a tax or trading program exclusively to address significant environmental problems. Instead, a pollution tax or a trading program almost always operates in conjunction with other programs. The existence of multiple programs raises the question of which market-based instrument works best with other programs. This Article focuses on this question.

This Article argues that a pollution tax works much better with other programs than emissions trading. A pollution tax provides an added impetus for pollution sources to accept complementary regulation. Pollution sources carrying out other requirements to reduce emissions end up reducing their tax bill and further enhancing environmental quality. Furthermore, because every ton of pollution remains subject to a tax, polluters acquire an incentive to consider going further than required when a more specific reduction requirement applies to them.

By contrast, a trading program systematically undermines supplemental measures. Additional programs do not usually generate extra emission reductions, as any additional pollution reductions arising from a supplemental program will usually generate credits that can be sold to polluters as a substitute for their local compliance with the trading program. As a result, a new program working together with trading often raises compliance cost and limits flexibility without necessarily adding environmental benefits. For these reasons, emissions trading will have the tendency to retard the development of robust multi-faceted approaches to environmental problems.

This Article asks whether a pollution tax’s superiority in “playing nice with other instruments” constitutes an important advantage, and concludes that for a complex long-term problem like transboundary air pollution, it does. Indeed, this Article shows that this ability to play nice with other instruments, at least in some contexts, matters a great deal more than the efficiency and simplicity arguments that scholars have conventionally focused on in debating instrument choice.

State Imperiled Species Legislation

Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani & Jennifer Teson

State wildlife conservation programs are essential to accomplishing the national goal of extinction prevention. By virtue of their constitutional powers, their expertise, and their on-the-ground personnel, states could—in theory—accomplish far more than the federal agencies directly responsible for implementing the Endangered Species Act (ESA). States plausibly argue that they can catalyze collaborative conservation that brings together key stakeholders to improve conditions for imperiled species. Bills to revise the ESA seek to delegate greater authority to states. We evaluated states’ imperiled species legislation to determine their legal capacity to employ the key regulatory tools that prompt collaborative conservation. All but four states possess statutory programs to identify species on the brink of extinction. Most of them include both animals protected under the ESA and wildlife imperiled just within the boundaries of the state. Thirty-four states legislate imperiled plant protection programs. States generally fail to prohibit habitat impairment by private parties, lack permit programs to minimize incidental harms to species and spur habitat conservation, and do not restrict state agency actions that undermine species recovery. Compared to the key regulatory programs of the ESA that prompt stakeholders to collaborate on conservation, state laws—in general—reflect a more permissive attitude. Though state laws, in the aggregate, only weakly support cooperative federalism, some state legislative provisions are very strong. Illinois, Massachusetts, and Wisconsin even go beyond the ESA in their protective measures. Major funding increases to pay for conservation measures could overcome weak agency regulatory authority, but prospects for a spending spree are dim. Therefore, some state legislative reform will be necessary to implement stronger cooperative federalism under the ESA.

Monumental Decisions: One-Way Levers Towards Preservation in the Antiquities Act and Outer Continental Shelf Lands Act

Jayni Foley Hein

This Article seeks to answer a key question: Do the congressionally delegated powers of the President of the United States to withdraw offshore areas from mineral leasing and to designate national monuments imply that a president has the power to rescind or diminish such designations made by prior presidents? It answers in the negative, consistent with the enduring national narrative that public lands should be regulated according to principles of democratic decision making, especially where important public trust interests are at stake. The powers conferred to the President in the Antiquities Act of 1906 and section 12(a) of the Outer Continental Shelf Lands Act (OCSLA) operate in one direction only: towards preservation. Presidents do not have the authority to rescind or diminish national monument designations or to restore permanently withdrawn areas to offshore leasing. Congress retains this authority through its plenary power over public lands set forth in the Property Clause of the U.S. Constitution.

This Article fills a gap in the existing literature by identifying common threads running through OCSLA section 12(a), the Antiquities Act, and the common law public trust doctrine. Longstanding public trust doctrine jurisprudence reflects the principle that important public land decision making should be done by legislatures, through their deliberative and democratic process, or pursuant to explicit legislature authority. The doctrine provides important context for a history of public lands jurisprudence in which courts demand greater justification for actions diminishing public lands than for protecting those same lands. The one-way lever structure of the Antiquities Act and OCSLA section 12(a) are consistent with this historical framework, empowering the President to take unencumbered action to protect natural resources, but leaving the more “monumental” question of whether to remove such public land protections up to Congress, alone.

Furthermore, this Article argues that the public trust doctrine should serve as a background principle or canon of interpretation for public land statutes. Where, as here, a statute is silent as to whether the President can diminish public land protections, courts should presume that Congress retained such power exclusively for itself.

Reducing Chloride Discharges to Surface Water and Groundwater: A Menu of Options for Policymakers

David A. Strifling

Greater environmental protections and increased public safety are often believed to be synonymous, or at least to go hand-in-hand. Sometimes, however, those two goals are arguably in tension—for example, when the excess application of salt for winter deicing, in combination with other chloride sources, causes elevated chloride concentrations in waterways. Sodium chloride, commonly known as salt, has often played a critical role in human culture, trade, religion, economics, public safety, and even warfare. But it has a complicated legacy that includes potentially serious adverse consequences for human health and the environment, including deteriorated water quality, toxicity to aquatic and benthic organisms, adverse effects on vegetation, and impacts to drinking water supplies. Moreover, environmental chloride concentrations are on the rise, having approximately doubled over the past two decades. Hundreds of scientific studies have examined potential risks to human health and the environment associated with excess chlorides in the environment, especially those sourced from deicing operations. Yet little, if any, of that work has been directed toward developing legal and policy strategies to address the chloride issue.

This interdisciplinary Article examines the underlying causes of unsustainable chloride pollution from a scientific and engineering perspective, and then proposes a menu of responsive legal and policy options. These options include incentivized self-governance at the community or individual levels; informational strategies to encourage optimal chloride use levels for deicing and in water softening applications; direct legal and regulatory mechanisms or mandated best practices issued pursuant to the Clean Water Act, state regulations, or municipal ordinances; use of chloride alternatives such as green infrastructure and substitute deicing substances; integrated watershed management; and direct economic measures. The Article does not suggest that all these options are appropriate in every context, nor does it rank them from most to least useful. Those decisions are left to affected stakeholders.

Moreover, the Article does not suggest the elimination of chloride use in its most visible forms (winter maintenance and water softening). Rather, it suggests that such use be optimized. In that spirit, the Article examines the technical and legal contours of each option, and links the scientific underpinnings to the legal and policy dimensions. This approach increases the likelihood that ultimate policy decisions can be both legally defensible and scientifically sound.

Patents and Climate Change: A Skeptic’s View

Ofer Tur-Sinai

Climate change poses a major challenge to humanity. In order to deal with our rapidly changing environment, there is a need for a broad range of new technologies that could assist in mitigating or adapting to climate change. Unsurprisingly, intellectual property (IP) scholars and policy makers have relied extensively on patents to provide incentives for the development of climate change technologies.

This Article casts doubts over the prospect of relying on patent incentives to adequately promote innovation in this domain. It explores the manner by which patents foster innovation in a variety of settings—from upstream research to end-product development—and reveals that the patent system is far from an optimal incentive mechanism in the environmental field, and thus cannot be trusted to adequately promote the development of climate change technologies. The likely failure of patents to effectively incentivize environmental innovation stems to a large extent from the major role assigned to market demand in directing innovation under the patent system. As market demand for environmental technologies tends to underrepresent their social value, patents cannot serve as an effective mechanism in this domain.

Considering the patent system’s apparent shortcomings in the environmental field, this Article recommends looking beyond IP and increasing the use of other incentive mechanisms, including prizes and research subsidies, in order to promote the development and diffusion of climate change technologies. In addition, the analysis explores the possibility of integrating into innovation policy certain measures that may increase demand for climate change technologies and thereby enhance the effectiveness of patent incentives in this domain. Such policy tools may include, for instance, command-and-control regulation, market mechanisms such as cap-and-trade programs and carbon taxes, and information dissemination to increase public awareness.