BoleyBlogs!

The latest issue of Lewis & Clark Law School’s Environmental Law Review is now out.

Here are the articles published in Volume 39, Issue 3 of Environmental Law Review, complete with links to the abstracts and full-text articles:

Articles

• At Home with Nature: Early Reflections on Green Building Laws and the Transformation of the Built Environment by Keith H. Hirokawa
• Swamp Swaps: The “Second Nature” of Wetlands by Fred Bosselman
• Environmental Liabilities and the Federal Securities Laws: A Proposal for Improved Disclosure of Climate Change-Related Risks by Mark Latham

2008 Ninth Circuit Environmental Review

• The Friends of Yosemite Valley Saga: The Challenge of Addressing the Merced River’s User Capacitie by John Cathcart-Rake
• Halting the Hitchhikers: Challenges and Opportunities for Controlling Ballast Water Discharges and Aquatic Invasive Species by Suzanne Bostrom

New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.

Keith H. Hirokawa, At Home with Nature: Early Reflections on Green Building Laws and the Transformation of the Built Environment, 39 Environmental Law Review 507 (2009)

Green building, which was formalized only fifteen years ago to promote healthier and more efficient building practices, has exceeded virtually all predictions of its potential. Green building has entered markets in almost every major city in the United States, while developing as a sophisticated basis for investment, human health, and conservation. Stated otherwise, green building is no longer a fringe environmental policy and, as argued in this Article, is even shedding its markings as a political ideology.

This Article examines two parallel but distinct consequences of the green building movement. First, by considering the major challenges to green building, this Article examines the conditions for success of the movement-how green building has become acceptable to consumers, the construction industry, and building regulators. Second, this Article explores the relationship between the goals and methods of green building laws and argues that green building compels a transformative, constructivist effect on humans’ place and position in nature. This Article ultimately argues that green building is special because of its pluralistic approach to regulation, ethics, and even to nature itself.

(abstract from Environmental Law Review)

Fred Bosselman, Swamp Swaps: The “Second Nature” of Wetlands, 39 Environmental Law Review 577 (2009)

Traditionally, American wetlands had market value only after being dredged or filled. Gradually, however, alternative markets are
being provided in which wetlands may obtain market value while remaining wet. As these markets grow they will raise new issues for U.S. wetlands policy, which today provides little guidance for the management of wetlands that remain wet.

Mitigation banking provides one of these markets, and has been given new stature by recent federal regulations. Water quality banking is being used to create wetlands to treat nitrogen and other pollutants. Markets for conserving wetlands that harbor rare species are attracting increasing interest both here and abroad. Markets for greenhouse gas diminution are producing interesting opportunities for wetland management, and traditional commodity markets are beginning to become interested in wetland plants and algae grown for biofuels.

Market-oriented environmental regulation has been a priority for federal policy for two decades. Such regulation can encourage
innovative new approaches to reach environmental goals, and wetlands offer promise as sites for new management techniques. Among the issues that will need to be resolved, however, are the size of the geographic area to be addressed, the identification of the
biogeochemical processes in wetlands that need to be considered, the translation of the policy objectives into commodities that can be monetized, and the choice of management technologies to achieve these objectives.

The most serious issue is whether newly-formed markets can acquire the same reputation for integrity that our well-established
markets have worked hard over generations to obtain. Recent experience with companies like Enron, various Ponzi imitators, and subprime indenture marketers have given heartburn to even the strongest proponents of free markets. Whether traditional or behavioral economists can restore market integrity is an issue that resonates far beyond this narrow application of the problem.

However, even if that problem is resolved, there remains the issue of “naturalness.” Our existing wetland policy is underlain by a powerful assumption that preserving wetlands in their natural state is desirable. Should future laws embody that policy, or do irreversible trends require us to concede that intensive ecosystem management is required? I suggest a compromise based on reading Thoreau. He would have recognized the need for ecosystem management, but only as long as large areas of natural wetlands remained-places in which people who love wild nature could continue to make the kind of serendipitous discoveries from which so much of our scientific knowledge has grown.

(abstract from Environmental Law Review)

Mark Latham, Environmental Liabilities and the Federal Securities Laws: A Proposal for Improved Disclosure of Climate Change-Related Risks, 39 Environmental Law Review 647 (2009)

Climate change-related developments are occurring at an unprecedented pace, with new federal, state, and international
proposals under contemplation by policymakers to dramatically reduce greenhouse gas emissions. In the United States, the apparent inevitable regulation of carbon dioxide and other heat trapping gases, and the predicted negative effects of climate change, presents a multitude of risks to businesses. Those risks-physical, regulatory and litigation-are encountered by many businesses today across numerous sectors of our national economy. Yet, while these risks are becoming more and more apparent, the current disclosure regime under the federal securities laws offers little, if anything, in terms of how those risks should be disclosed to the Securities and Exchange Commission and investors.

This Article summarizes the climate change-related risks that businesses face, then provides an overview of the intricacies of the current SEC environmental risk disclosure regime, including relevant accounting profession guidance, and questions whether adequate disclosure of climate change risk follows from the present regulatory system. This Article concludes that the current SEC disclosure regime is insufficient in terms of driving publicly traded companies to sufficiently disclose climate change risks.

To improve the disclosure of climate change-related liabilities by publicly traded companies, the SEC must provide specific guidance and should do so through a staff accounting bulletin. This follows an approach the SEC took in Staff Accounting Bulletin No. 92, where it advised publicly traded companies how to better account for and disclose liabilities incurred under the Comprehensive Environmental Response, Compensation, and Liability Act.

This Article argues that to improve disclosure of climate change risks there is a new role for the Emergency Planning and Community Right-to-Know Act. The list of “toxic chemicals” subject to the statute’s section 313 reporting requirements should be revised by the Environmental Protection Agency to include the principal greenhouse gas, carbon dioxide. This Article concludes with how to subject carbon dioxide to the section 313 annual reporting requirements and the benefits for investors and businesses that would follow as a result. An advantage offered by the expanded use of section 313 is that the multichemical data provided in the Toxics Release Inventory database would present a comprehensive overview of the full array of toxic chemicals, including carbon dioxide, released in substantial quantities from the facilities operated by those businesses subject to expanded section 313 reporting. From the perspective of the investor who is interested in weighing not only the climate change risks a business may present, but also considering broader environmental risks, the availability in a single database of a broad spectrum of chemical release information is invaluable for an investor to perform an overall environmental risk evaluation and to factor that risk into the investment decision.

(abstract from Lewis & Clark Law Review)

John Cathcart-Rake, The Friends of Yosemite Valley Saga: The Challenge of Addressing the Merced River’s User Capacities, 39 Environmental Law Review 833 (2009)

In the fall of 2009, Ken Burns’s documentary series on the National Park system premieres on PBS. Around the same time, the Park Service plans to release a comprehensive management plan for the Merced River corridor in Yosemite National Park. While Burns’ documentary will echo Wallace Stegner’s characterization of the park system as one of America’s “best” ideas, and is thus likely to inspire nostalgia, as well as increased visitation to popular parks, such as Yosemite, the release of the Merced River Plan will reignite controversy regarding the Park Service’s duty under the Wild and Scenic River Act (WSRA) to control visitors and development to prevent the degradation of the Merced River corridor, including Yosemite Valley. The Ninth Circuit, in Friends of Yosemite Valley v. Norton and Friends of Yosemite Valley v. Kempthorne, has already rejected two versions of the Merced River Plan. This Chapter chronicles the decade-long battle over the Merced River Plan and user capacity in Yosemite Valley, placing the recent controversy within the context of the Park Service’s traditional promotion of visitation and recreation. Although the Ninth Circuit stopped short of requiring a visitor cap in Yosemite Valley, this Chapter examines the arguments for and against such a cap, discusses the immediate consequences for Park Service officials tasked with correcting the Merced River Plan’s deficiencies, and considers the ripple effects of the Ninth Circuit’s ruling on river managers nationwide.

(abstract from Environmental Law Review)

Suzanne Bostrom, Halting the Hitchhikers: Challenges and Opportunities for Controlling Ballast Water Discharges and Aquatic Invasive Species, 39 Environmental Law Review 867 (2009)

Ballast water discharges are responsible for many of the most damaging aquatic invasive species introductions around the world. Despite the costs, environmental harm, and tremendous threat posed by aquatic invasive species introductions, no binding federal or international regime exists that requires the adoption of treatment technologies for ballast water discharges. Recently, however, in Northwest Environmental Advocates v. U.S. Environmental Protection Agency, the Ninth Circuit held that the U.S. Environmental Protection Agency must regulate ballast water discharges under the Clean Water Act. In light of the implications of Northwest Environmental Advocates, this Chapter examines the efficacy of existing and proposed federal, state, and international ballast water controls, and explores whether the United States could drive the adoption of treatment technologies that exceed the proposed international standard. The Chapter concludes with suggestions on how the United States might resolve the conflicts between federal, state, and international ballast water controls.

(abstract from Environmental Law Review)