Vibrant Environment

During the 19th century’s period of rapid population growth, America’s wetlands were largely considered to be an eyesore and an obstacle to development. These were bodies of water that needed to be drained in order to make way for agriculture, buildings, and major roadways. The successive Swamp Land Acts of 1849, 1850, and 1860 turned titles of federally owned swamp and “overflowed” land over to states, who in turn agreed to drain the land to make it fit for cultivation.

The New York Times reported on a conference of prominent lawyers to address the following question, “Do people have a constitutional right to freedom from air pollution and other environmental hazards and annoyances?”

What was an “unusual meeting” in the Times’s phrasing was held not last month but a half century ago at a rural conference center known as Airlie House just outside Warrenton, Virginia. The venerability of that clipping can be seen by the newspaper’s citing “the new field of ‘environmental law.’”

Greta Thunberg’s arrival in New York last month was highly publicized. So was her choice to travel via a “zero-emissions” yacht and her speech before the U.N. General Assembly. What many missed was that she also filed a complaint against five countries over their climate negligence during her visit. But before Greta, there was (is) Juliana (well, Kelsea). Kelsea Cascadia Rose Juliana is the leading plaintiff in Juliana v. United States, otherwise known as the Youth Climate Case. Supported by the nonprofit organization Our Children’s Trust, Juliana and 20 other youth plaintiffs sued the U.S. government in 2015 over its lack of action to combat climate change. Greta and Juliana’s cases are among a small but growing docket of climate-related litigation around the globe, cases that may become the Marbury v. Madison of climate case law.

A number of bills have been introduced in recent years to price greenhouse gas (GHG) emissions via a federal carbon tax. These proposals proceed from the implicit assumption that the federal government in general, and the U.S. Environmental Protection Agency (EPA) in particular, does not already have such authority. But this assumption, according to former EPA Assistant Administrator and General Counsel E. Donald Elliott, is incorrect.

The easiest way to reduce emissions is to avoid producing them in the first place. Because a carbon fee makes it more profitable to avoid carbon emissions, it encourages businesses and individuals to conserve energy, reduce emissions, and develop innovative technology.

In May 2020, the International Network for Environmental Compliance and Enforcement (INECE) will celebrate the 30th anniversary of its first international workshop that was held in Utrecht, Netherlands. In the 30 years since its foundation, we have witnessed an explosion in the development of environmental laws around the world. For example, according to the First Global Report on the Environmental Rule of Law, there has been a 38-fold increase in environmental legislation since 1972.

“For everything there is a season,” says the old Pete Seeger song, quoting the much older still book of Ecclesiastes. It seems that we are currently in the season of walls. The physical manifestation of this particular period may be the issue of the wall on our southern border. But there are other walls, and some of them have law as their concrete or steel.

On the first Earth Day in 1970, Sen. Edmund Muskie called for “A total strategy to protect the total environment.” At that time – and for several decades – the overarching approach was one of regulatory compliance, largely directed by government. But the next 50 years of environmental protection will not look like the first 50—they will be driven by technology as much as by regulation.

On August 27, the New York Supreme Court struck down the New York Household Cleansing Product Information Disclosure Program (HCPDIP), which requires manufacturers to list chemical ingredients of concern on their website. The court struck down the HCPDIP on the basis that the New York Department of Environmental Conservation (DEC) did not follow proper procedures under the State Administrative Procedures Act (SAPA). The court stated that though the department issued it as a "guidance," it was in fact a binding rule and did not follow the proper procedures in creating a formal law. The HCPDIP was declared "null and void" and remitted back to the DEC for compliance with the SAPA. In light of the court’s ruling, cleaning product manufacturers no longer have to comply with listing requirements by January 2020.

It is estimated that over 800 million people will be at risk from the impacts of rising sea levels by 2050, concentrated among 570 coastal cities across the world. Some of these cities have already started to experience the impacts of sea-level rise and storm surges, which has catalyzed efforts by governments and individuals to begin preparing for more projected effects.