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ARTICLES

Public Land and Resources Law in the American West: Time for Another Comprehensive Review?

Robert B. Keiter & Matthew McKinney

The federal public lands, a defining characteristic of the American West, are embroiled in change and controversy. This is nothing new as these lands have long ignited passions linked to debates over resource development versus protection and federal-state relations. During the past fifty years, however, changes engulfing the region have helped enflame these historic debates, driven by unparalleled population growth, major economic and social shifts, water conflicts, energy development demands, climate change impacts, emergent recreational and environmental values, new scientific knowledge, extensive litigation, reduced agency budgets, new community-based collaborative initiatives, and the like. These remarkable changes are testing the legal and institutional framework governing the public lands, which has changed little during the past fifty years despite recurrent criticism directed toward its shortcomings. In fact, the last comprehensive review of federal public land and resource law occurred during the 1960s, when the Public Land Law Review Commission convened and issued a groundbreaking report that helped prompt much-needed legal reforms, such as the Federal Land Policy and Management Act, National Forest Management Act, Payment in Lieu of Taxes Act, and Public Rangelands Improvement Act. Given the level of controversy prevailing on the public lands today, this Article addresses the question whether the time has come for another comprehensive review of the relevant laws governing these publicly owned lands and their resources. The Article identifies the changes that are inexorably reshaping public land policies, reviews past efforts through federal commissions to examine and reform the laws governing these lands, and assesses the prospects for another comprehensive review. Noting the extreme level of controversy and distrust that persists today, it concludes by proposing a more limited review effort, one focused on accelerating recreational uses and conflicts that may present an opportunity to achieve consensus for the sake of the landscape that everyone is sharing and values. 

The Problem of Unquantified Benefits

Amy Sinden

Many of the objections raised against the use of cost-benefit analysis (CBA) to evaluate government regulation, especially in the environmental context, center around the difficulties involved in quantifying and monetizing regulatory benefits. These difficulties implicate deep theoretical issues that have spawned a massive literature spanning many decades. But the difficulties posed by quantification also raise a straightforward empirical question that has been largely ignored: how often and to what extent does the problem of unquantified benefits actually arise in the practice of CBA, and how often is it attributable to the more prosaic problem of inadequate data? This Article presents methods and results of an empirical study aimed at this question. The study examined forty-five CBA’s prepared by the United States Environmental Protection Agency (EPA) in connection with major final rules issued between 2002 and 2015. In 80% of the CBAs analyzed, EPA excluded categories of benefits that the agency itself described as either actually or potentially “important,” “significant,” or “substantial” because they were unquantifiable due to data limitations.

In order to understand the implications of these findings for the debate about CBA more generally, this Article lays out an analytic framework for understanding the role that quantification plays in CBA, detailing how significant unquantified benefits constrain the kind of CBA that can be performed, precluding more formal varieties. These results suggest that in developing environmental rules, agencies are rarely ever able to legitimately conduct formal CBA of the sort called for in the relevant executive orders and guidance documents, and that even the informal varieties of CBA they can conduct will produce only limited conclusions at best. This suggests that the connection between CBA and its normative foundations in efficiency or welfare is even more tenuous than most of its defenders have assumed, and bolsters the case for alternative tools, like feasibility and health-based criteria, that set standards based on the information we have rather than the information we wish we had.

The Impracticability Exemption to the WCPFC’s Prohibition on Transhipment on the High Seas

Chris Wold 

Transhipment at sea allows fishing vessels to offload their catch on to carrier vessels, take on supplies, and continue fishing without leaving their fishing grounds. Worldwide, transhipment at sea, particularly on the high seas, poses serious problems because it is largely unmonitored. It is associated with higher levels of illegal, unreported, and unregulated fishing and has also been implicated in a range of criminal activities, including wildlife trafficking, drug trafficking, human smuggling, and more. For these reasons, the international community has sought to limit or ban transhipment at sea. The Western and Central Pacific Fisheries Commission (WCPFC) prohibits transhipment at sea by purse seine vessels. For longline and other non-purse seine vessels, however, it prohibits transhipment on the high seas unless a WCPFC member determines that transhipment in port is “impracticable” because it would cause “significant economic hardship” or require a vessel to make “significant and substantial changes to its historical mode of operation.” Certain WCPFC members, however, treat this exemption as the rule. The evidence strongly indicates that transhipment in port would not cause significant economic hardship or a substantial change to a vessel’s mode of operation. Moreover, market reasons do not suggest that transhipment at sea is needed to get valuable fish products to market.

This Article proposes replacement of the “impracticability” test with bright line rules—namely, a presumption against transhipment on the high seas. It allows, however, time-limited exemptions to ensure transhipment of ultra-low temperature frozen fish from a fishing vessel to a carrier vessel and for fresh fish but directs the Secretariat to study the circumstances under which these exemptions are needed; the exemptions expire unless these studies conclude that the exemptions are necessary. In addition, and in sharp contrast to the current regime, the exemptions must be approved by the WCPFC; they cannot be unilaterally established. The process that applies to exemptions for purse seine vessels would be applied to all other vessels. Moreover, to allow the WCPFC to review implementation of such plans to encourage transhipment in port, exemptions may not be granted for more than three years, although CCMs may apply for a new exemption at the end of the three years. Only through such a process can the WCPFC help minimize illegal, unreported, and unregulated fishing, prevent human rights abuses, and reduce opportunities for human trafficking and smuggling of guns, drugs, and wildlife. At the same time, it will help Pacific Island States develop their ports and economies. 

From Friend to Foe: The Complex and Evolving Relationship of the Federal Government and the Migratory Birds it is Bound to Protect          

Jessica Scott & Andrea Folds 

The year 2018 marked the 100th anniversary of the signing of the Migratory Bird Treaty Act (MBTA or the Act), which has protected hundreds of bird species from death and even extinction over the past century. Unfortunately, the Trump Administration appears dedicated to eviscerating the Act’s effectiveness in honor of this auspicious occasion. In December 2017, the United States Department of Interior (DOI) reversed approximately fifty years of federal government policy by excluding “incidental takes” from coverage under the Act. “Incidental takes,” unlike direct takes such as hunting or poaching, consist of bird deaths caused unintentionally, and constitute the vast majority of bird deaths in the present day.

This Article presents an analysis of the DOI’s new policy on incidental takes under the Act. It begins by providing a retrospective of the MBTA from its origins at the beginning of the twentieth century to its evolution through the modern day. It looks first to the history of the Act and the international Migratory Bird Treaties, then considers major amendments to the Act. It presents some of the greatest current threats to birds, which generally constitute incidental takes, including deaths caused by habitat loss, pesticide use, and climate change. It then examines the legal parameters of incidental take, including incidental takes caused by the government itself, as well as the complex issue of whether federal government incidental takes are covered by the Act. It considers the DOI’s new opinion, evaluating its significance as well as environmental groups’ lawsuit filed in May challenging this new opinion.

This Article argues that the current political threats to the MBTA, and the DOI’s new legal opinion in particular, have transformed the federal government from being one of birds’ greatest friends to their foe. It concludes that the DOI’s current position must be corrected to cover incidental take under the MBTA. Moreover, the DOI should strengthen its stance on incidental take by clarifying that the federal government itself may be found liable for incidental takes. It is only through so doing that the MBTA can continue to be an effective statute over the next 100 years and combat the greatest global environmental threat of our time: climate change

 

ESSAYS

Environmental Injustice and the Limits of Possibilities for Environmental Law

Sarah Krakoff

Climate change and extreme inequality combine to cause disproportionate harms to poor communities throughout the world. Further, unequal resource allocation is shot through with the structures of racism and other forms of discrimination. This Essay explores these phenomena in two different places in the United States, and traces law’s role in constructing environmental and economic vulnerability. The Essay then proposes that solutions, if there are any to be had, lie in expanding our notions of what kinds of laws are relevant to achieving environmental justice, and in seeing law as a possible tactic for instigating broader social change but not as a sole means of achieving it. To achieve environmental justice, it will take first more than environmental law, and then more than law.

The Climate Necessity Defense: Protecting Public Participation in the U.S. Climate Policy Debate in a World of Shrinking Options

Grace Nosek 

Scholars have documented how, since 1989, the climate change counter-movement, a densely connected and well-funded network of fossil fuel industry members and their allies, has worked to stymie government action on climate change. Recent allegations that key actors in the climate change counter-movement, including Exxon Mobil, actively misled the public on the science of climate change have given rise to litigation and investigations by states’ attorneys general. At the same time, climate protesters have been facing violence, harassment, and legislative crackdowns. Some climate protesters facing criminal charges for civil disobedience are attempting to use the climate necessity defense in court. The essential thrust of the climate necessity defense, an affirmative defense to criminal charges arising from civil disobedience, is that the harm of the defendants’ disobedience is far outweighed by the harms being protested. This Essay sketches some initial connections between the influence of the climate change counter-movement, the crackdown on climate protesters, and the importance of the climate necessity defense. In doing so, it highlights the shrinking options available to members of the public to participate in the debate over climate policy, underscoring why some might feel compelled to engage in civil disobedience. Finally, it briefly discusses the climate necessity defense and argues that it is an important tool to help ensure the U.S. public has an effective voice in climate policy. 

COMMENT

The Constitutional Public Trust Doctrine

Kacy Manahan

Courts and commentators often characterize the public trust doctrine as a common law rule created by judges. Recent developments in state constitutional law, however, reveal that the doctrine has structural roots that often emerge upon examination of certain constitutional provisions. This Comment argues it is not unusual for state constitutions to include public trust doctrines, and that as a limitation on sovereign power, a judicially enforceable constitutional trust is appropriate.

This Comment first reviews monumental decisions in Hawaii, Pennsylvania, and Washington developing their respective constitutional public trust doctrines. This Comment then identifies examples of similar provisions in other states’ constitutions, analyzing the potential for, and implications of, a constitutional public trust doctrine within those states. Finally, this Comment concludes that the public trust doctrine should be judicially enforceable and safeguarded from statutory preemption and is therefore appropriately located in a constitutional setting.