Current Issue

  • Volume 31,
  • Number 1 -
  • Fall 2020


The Environmental Protection Agency’s Role in U.S. Climate Policy- A Fifty Year Appraisal
Jody Freeman

Where the Deer and The Antelope Play:Conserving Big Game Migrations As an Endangered Phenomena
Temple Stoellinger, Heidi J. Albers, Arthur Middleton, Jason F. Shogren & Robert Bonnie

In the American West, high-profile big game species including mule deer, antelope, elk, moose, bison and bighorn sheep use large landscapes to migrate between winter and summer habitats to obtain the resources they need to survive. The big game species are a vital part of the West’s ecology, economy, and culture and are valued by local, national, and international stakeholders. Thanks to large parcels of private and public land and a low human population, many parts of the American West still provide some of the best big game habitats in the world. But these vast, intact landscapes are under threat by ongoing habitat loss and disturbances to seasonal and migratory habitats that result in declines in big game population and the disappearance of migrations.

Addressing the challenge of conserving big game populations and the endangered phenomena of seasonal migration across large landscapes in the American West will require dynamic, innovative, and flexible legal approaches. Those legal approaches should recognize the biological needs of the species themselves and reflect economic policy analysis of conservation in landscapes with multiple land managers. Considering both integrated biological and economic decision frameworks and incentive-based tools to define and implement legal and policy structures can produce migratory species conservation more efficiently than less integrated approaches.

Conservation of big game migrations is now a growing priority and initial conservation efforts are beginning to emerge, including the Department of Interior Secretarial Order 3362 “Improving Habitat Quality in Western Big-Game Winter Range and Migration Corridors” and state policies including the Wyoming Game and Fish Department Ungulate Migration Corridor Strategy. This interdisciplinary paper evaluates those emerging policies and finds that the policies miss opportunities to provide higher levels of conservation of migratory species by failing to address key ecological characteristics of migratory species and to incorporate economically efficient hierarchies of management and policy. We conclude by offering thoughts on how future conservation polices might be designed to incorporate both ecology and economics to better conserve migrations.

Essay: Forks In the Road
Michael P. Vandenbergh & Jonathan M. Gilligan

This Essay outlines a simple heuristic that will enable public and private policymakers to focus on the most important climate change mitigation strategies. Policymakers face a dizzying array of information, pressure from advocacy groups, and policy options, and it is easy to lose sight of the forest for the trees. Many policy options are attractive on the surface but either fail to meaningfully address the problem or are unlikely to be adopted in the foreseeable future. If policymakers make the right decision when confronting three essential choices or forks in the road, though, the result will be 60% to 70% reductions in greenhouse gas emissions, an amount that will keep widely-adopted climate mitigation goals in reach. The three options are decarbonization of the electrical grid, electrification of the motor vehicle fleet, and electrification of buildings. International, national, and subnational officials, philanthropists, corporate executives, advocacy group leaders, and households all have the ability to prioritize these three options in their regulatory, purchasing, and other actions. If they choose these three decarbonatization options, many other mistakes can be made without jeopardizing the achievement of widely adopted emissions targets. If they make the wrong choice, however, few combinations of other viable options can achieve the necessary reductions. In the face of a growing consensus that immediate, major emissions reductions are required, the forks in the road heuristic can provide policymakers with the framework necessary to make smart decisions and ignore the noise surrounding climate law and policy.

Note: Foundational But Not Fundamental: No Right To the Environment
Robert Torres

The world is on fire, and despite a general consensus among scientists that climate change is an imminent threat, recent decades have been devoid of legislatures capable of enacting meaningful legislation. The flames rage on as our President, an outspoken denier of climate change, adds fuel to the fire by stripping whatever attempts had been previously made to mitigate the effects of climate change. Forced to live in what seems a forsaken world, nineteen youths, a nonprofit organization, and a scientist on behalf of all future generations brought suit against the United States government, seeking more robust environmental protections. In a landmark decision that garnered much thoughtful attention, Juliana v. United States, held, in pertinent part, that the U.S. Constitution protects a fundamental right to a climate system capable of sustaining human life. After nearly a century of looking past the written words of the Constitution to find intrinsic rights, twenty years ago the Supreme Court dictated a rigid two-part test for sustaining alleged fundamental rights. The Glucksberg test came to fruition despite decades of justices arguing for a more fluid analysis. That is until Justice Kennedy penned Obergefell v. Hodges. Justice Kennedy carefully sidestepped Glucksberg so as not to offend it and instead adopted that fluid approach in finding certain fundamental rights, leaving two possible paths. This Note argues that under the current formation of Supreme Court substantive due process jurisprudence, the Constitution does not protect a fundamental right to a climate capable of sustaining human life. Neither Glucksberg nor Obergefell provide a proper avenue through which plaintiffs may successfully seek redress. Rather, plaintiffs must utilize other mechanisms to effectuate a lasting change, such as amending the Constitution, employing the political process, or persistently litigating in a piecemeal fashion.