Author: Matthew Lutz

By Dewey Warner.  “Our planet is a lonely speck in the great enveloping cosmic dark. In our obscurity, in all this vastness, there is no hint that help will come from elsewhere to save us from ourselves.” Less than three decades after Carl Sagan penned this warning, the responsibility “to preserve and cherish . . . the only home we’ve ever known” is illuminated in stark and tragic fashion by the effects of a rapidly changing climate. Extreme weather events are more frequent and severe. A mass extinction is underway. Tens of millions face famine. A heightened risk of disease threatens the entire human population. The phrase “climate refugees” has entered the popular lexicon. Full Article.

By Arden Rowell and Kenworthey Bilz. Pollution control is fundamentally affected by how people evaluate the harm of pollution. In many legal contexts, psychological processes contribute to an intuitive undervaluation of the harms of pollution, particularly where those harms are diffuse in space and time, complex in character, and/or accrue to nonhuman stakeholders. Psychological processes that impact people’s perception, understanding, and response to pollution can therefore affect how—and how effectively—pollution is controlled. Understanding those psychological processes can thus pay explanatory and prescriptive dividends, including by informing how pollutants are defined, when pollution is tolerated, and how pollution control instruments operate.Full Article. 

By Rhett Larson & Dylan Hendel. Colonias are small, generally unincorporated communities of predominantly Hispanic residents located near the U.S./Mexico border that suffer disproportionately from water insecurity associated with inadequate drinking water quality and reliability and flooding risks. Many of the water insecurity challenges facing colonias’ residents stem from inadequacies in water law and environmental law. However, many legal obstacles to achieving water security in colonias stem from seemingly unrelated legal challenges, including voting rights, land title and land use issues, and lack of access to effective legal assistance, particularly in securing support from existing federal programs. Each of the four border states–Texas, New Mexico, Arizona, and California–have dealt with water insecurity challenges facing colonias in a variety of ways. In this article, we explore those challenges facing colonias’ residents in…

By Sean Krieg.   On April 1, 2021, the Second Circuit Court of Appeals told taxpayers to “shoulder[] the burden” of New York City’s climate mitigation expenses without any help from major fossil-fuel producers, marketers, or distributors. The court made this unfortunate assessment while affirming the dismissal of the City’s claims against oil and gas companies responsible for over eleven percent of all industrial methane and carbon pollution since the industrial revolution. The City had sued for financial assistance with the costs of protecting its residents from the impacts of the climate crisis—a crisis these companies played a major role in creating and aggravating. In its complaint, the City emphasized how these particular defendants deliberately obfuscated climate science to promote their products, despite their advanced understanding of the global harms resulting…

By Steven Ferrey. The much-lauded advantage of the U.S. federalist legal system of separation of legal powers among separate levels of federal, state, and local government is credited with seeding innovation, experimentation, and diversity as a positive variable in the resilient American legal system. Now, U.S. separation of power within the U.S. system of law poses a legal barrier to addressing climate change or rapidly transitioning to sustainable infrastructure. Inferior levels of state and local government now are placing their legal ‘thumb’ on and are legally blocking implementation of the recently enacted Infrastructure Investment and Jobs Act (2021 Infrastructure Law) and the 2022 Inflation Reduction Act. This article analyzes elements supporting these legal barriers and relevant precedent. Concerning this most important sustainability legislation in a generation, successful implementation matters for the…

By John C. Dernbach and Scott E. Schang. In his enormously influential writings on the public trust doctrine, Professor Joe Sax argued that its core idea could, and should, be expanded beyond the natural resources to which it had been historically subject. He made that point forcefully in an essay entitled Liberating the Public Trust Doctrine from Its Historical Shackles. “At its heart,” he wrote, “the public trust doctrine is not just a set of rules about tidelands, a restraint on alienation by the government or an historical inquiry into the circumstances of long forgotten grants.” Rather, he said, courts should resolve competing claims of public use and private ownership by examining expectations concerning the use of particular resources. “The central idea of the public trust is preventing the destabilizing disappointment of…