Volume 55, Issue 1

 

LAND ACKNOWLEDGEMENT

TABLE OF CONTENTS

 

ARTICLES

Dirty Water: The Failure of the Clean Water Act’s TMDLs

Annie Brett

Defining the Right to a Healthy Environment: Insights from the Inter-American Court of Human Rights

Amy Van Zyl-Chavarro

Examples of governments’ failure to protect individuals from the devastating impacts of environmental degradation are widespread, and the ramifications are increasingly global, affecting transboundary concerns like human migration, food production and climate. The global nature of these problems calls for international law solutions, and advocates are increasingly interested in framing environmental degradation as a human rights problem. In March 2024, the Inter-American Court of Human Rights issued its decision in Inhabitants of La Oroya v. Peru, a groundbreaking case with significant implications for the right to a healthy environment. For the first time, the Court explained and applied its understanding of an individual’s right to a healthy environment as a stand-alone right, independent from the environment’s impact on other human rights. This Article will explain how a broader historical and legal context informed the development of this line of jurisprudence. It will also examine the meaning and scope of the human right to a healthy environment as envisioned by the Inter- American Court, including the obligations this norm might require of governments within the region. Finally, the Article will analyze how the Court’s approach contributes to the development of human rights law in relationship to environmental law. As human rights advocates continue to push for other international and regional human rights bodies to recognize a justiciable human right to a healthy environment, the Inhabitants of La Oroya decision will provide an invaluable foundation for developing and defining the right even beyond the Inter-American System. This Article outlines the guideposts that others will need to build upon that foundation.

Revisiting Precaution in Domestic Climate Change Litigation

J. Michael Angstadt

As domestic climate change lawsuits proliferate, norms and principles of international environmental law increasingly inflect their arguments and reasoning. In this Article, I use the precautionary principle, which is frequently employed to justify climate action despite scientific uncertainty, to explore the nature and implications of this phenomenon. I suggest that the evolution of climate litigation, climate science, and the precautionary principle itself collectively demand renewed examination of the justification and effect of using the precautionary principle in domestic climate litigation.

In Part II, I highlight the simultaneous increase in domestic climate change lawsuits and embrace of the precautionary principle. I trace this trajectory, and I emphasize that the precautionary principle has continued to evolve alongside climate lawsuits. As I note, climate change disputes were historically grounded in climate science that was itself marked by considerable uncertainty. Over time, however, the litigation landscape has evolved, in part reflecting climate science improvements and novel forms of argumentation. Simultaneously, the framing of climate lawsuits has expanded, and it now includes non-climate aligned suits that, like the precautionary principle, emphasize the uncertainty of climate change science. Therefore, in Part III, I urge that the precautionary principle’s use in climate change lawsuits might be seen to have evolved through three distinct phases: (1) early efforts to leverage the principle’s proactive, protective effect; (2) recent, widespread use; and (3) current developments which merit further consideration of its implications and benefits.

Ultimately, in Part IV, I suggest that the precautionary principle is likely to hold continued value as domestic climate litigation further evolves. However, I advocate two opportunities to maximize its benefits. First, noting considerable diversity in how the precautionary principle is interpreted and its implications are understood, I suggest that future academic research can beneficially explore the effect of the precautionary principle, while judges and other legal practitioners can more explicitly specify how it is interpreted and applied in specific domestic contexts. Second, noting that the precautionary principle is closely related to considerations of scientific uncertainty, I advocate and explore means to better integrate insights from scientists, attorneys, and judges who operate at the science-law interface in complex climate change lawsuits.

Democratizing Power Transmission

Sebastian Luengo

How can we achieve a just, timely, and clean energy transition? The scholarly and policy discourse has centered on fostering technological innovation in power generation, overlooking critical obstacles in the transmission sector. Neglecting transmission issues has caused a significant delay in the transition to a decarbonized economy, with hundreds of gigawatts in the queue waiting for connection.

One of the biggest hurdles to transmission deployment is the lack of public acceptance. Citizens often resist energy infrastructure projects when they are imposed on them by planners and developers with little to no prior consultation or dialogue. I argue that expedited power transmission development to further just transition governance should include broad deliberative dialogues that engage communities. I explore ways of integrating deliberative mechanisms into power transmission planning. I compare minimal and broad deliberative planning opportunities, and their implications for democratic and procedural justice goals.

This Article explores local communities’ interests when their lives collide with plans for energy infrastructure. Throughout this Article, I emphasize the need for institutional decision-makers to break silos and recognize the lives of local communities as more than just technical data to be fed into a planning or pricing algorithm.

The Article begins by detailing the challenges to power transmission planning, such as transmission bottlenecks and remote renewable generation. Then I analyze emerging energy democracy theory and its relation to transmission planning and civic engagement. I explore the advantages of addressing technical and social issues together and whether their current procedural disconnection is impeding the timely implementation of energy infrastructure while affecting its legitimacy.

Then I examine power transmission planning structures and their institutional and decisionmaking arrangements. I focus on the dynamics of U.S. liberalized regional markets and regional transmission organizations as a case study. Using the U.S. example and drawing on literature from public policy and legal studies, I investigate how to increase public deliberation in power transmission planning. I raise instrumental, substantive, and normative considerations, such as who, what, and when to consult, how to increase transparency, and how to work within timing constraints. Through these proposals, I tailor and distill lessons for policymakers and citizens who wish to adapt these frameworks and recenter civic engagement on power transmission dynamics around the world.

Finally, I offer a research and dialogue agenda. Here I acknowledge the shortage in legal energy scholarship concerning case studies and practical outcomes of deliberative mechanisms across local, state, regional, and national perspectives. I also call for engaging in comparative work within the Global South for a better understanding of deliberative planning venues. Additionally, I urge further research on how to incorporate public engagement mechanisms into transmission planning from a legal perspective. For instance, I recommend exploring regulatory techniques such as experimentalism and other innovative mechanisms to include social and local issues.