This Month's Issue of ELR

Volume 52 Issue 12 —

by Jordan Diamond, Tanya Nesbitt, Pamela Giblin, Ignacia S. Moreno, Marisa Blackshire, and Shannon Morrissey

The field of environmental law has seen many changes over the years, with demonstrable legal and policy victories for cleaner air and water. While the face of the environmental movement in its beginnings was predominantly male, women have become more prominent and influential within environmental law and policy over the decades. On July 26, 2022, the Environmental Law Institute’s Women in Environmental Law and Leadership Initiative hosted a cross-generational panel of women who explored opportunities and challenges for women in environmental law and policy “then and now,” and offered advice for the next generation of lawyers and policymakers breaking into the field. This Dialogue presents a transcript of that discussion, which has been edited for style, clarity, and space considerations.

by Emma Schwartz

Underregulation is a common and persistent environmental law problem, with recent scholarly focus on individual contaminants of emerging concern (CECs), whose harm is not fully known. But little attention has been given to the general trend of underregulation with respect to these chemicals, or explaining why this systematic underregulation occurs. This Article posits that federal agencies have been unacceptably slow to initiate protective regulations, and even once regulations are promulgated, they leave regulatory gaps that continue to expose populations to harmful effects. It further argues that the scientific uncertainty that defines CECs as a class is responsible for this particularly significant pattern of underregulation, and obscures the existence and scope of the problem from the public and from regulators themselves. The Article concludes with recommendations to address these shortfalls.

by Michael C. Blumm

This Article examines the nature of the threats that climate change poses and will continue to pose for salmon recovery, as well as possible legal responses to combat these threats. It also considers the future prospects of Pacific salmon in a world that will include significant climate change and other threats to preserving and equitably apportioning the salmon resource, whose environmental sensitivity and expansive life cycle will continue to pose substantial challenges for the foreseeable future. The Article is adapted from Pacific Salmon Law and the Environment: Treaties, Endangered Species, Dam Removal, Climate Change, and Beyond (ELI Press 2022).

by Jessica Wentz and Benjamin Franta

Over two dozen U.S. states and municipalities have filed lawsuits against fossil fuel companies, seeking abatement orders and compensation for climate damages based on theories such as public nuisance, negligence, and failure to warn, and alleging these companies knew about the dangers of their products, intentionally concealed those dangers, created doubt about climate science, and undermined public support for climate action. This Article examines how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids. A key finding is that courts may infer public reliance on false and misleading statements using multiple lines of evidence, including information about the scope and magnitude of the deceptive communications, defendants’ internal assessments of the efficacy of their disinformation campaigns, acknowledgements of intended reliance made by defendants, expert testimony on the effects of disinformation, public polling data, and more. The Article concludes with a discussion of these potential strategies and evidentiary sources.

In the Courts

Maryland climate suits remanded to state court.

In the Agencies

FWS delists snail darter under the ESA.              

In the Congress

House introduces Relief for Farmers Hit With PFAS Act.

In the States

CARB proposes new rules for off-road diesel vehicles.