The UCLA Journal of Environmental Law and Policy produces a high quality biannual journal on cutting-edge environmental legal and policy matters. JELP is entirely run and produced by students at UCLA School of Law. Articles in JELP are written by leading scholars throughout the country and often the world, and by students focusing on environmental law at UCLA.
Volume 35, Issue 2, 2017
Executive Authority to Keep It in the Ground: An Administrative End to Oil and Gas Leasing on Federal Land
The United States maintains a federal program whereby private actors lease access to the federal mineral estate, including vast stores of fossil fuels. Issuing these leases to extractive industries means a considerable amount of otherwise-benign carbon is released into the atmosphere, which contributes significantly to global climate change. Environmental organizations have called on the executive branch to change this policy under a campaign called “Keep It in the Ground.” This article evaluates the executive branch’s authority to end onshore oil and gas leasing administratively, without action by Congress. I conclude that the Department of the Interior can terminate onshore oil and gas leasing under discretionary authority contained in the Mineral Leasing Act and the Federal Land Policy and Management Act. Based on this authority, the President, acting through the Interior Department, could create a national rule or set of rules, similar to the Forest Service’s 2001 Roadless Rule, ending oil and gas leasing nationwide. Only process, not substantive law, would limit the executive branch’s ability to stop the extraction of federal fossil fuels.
Turn Down the Volume: Improved Federal Regulation of Shipping Noise Is Necessary to Protect Marine Mammals
The public is beginning to recognize the true impacts of ocean noise on marine mammal behavior. In particular, the shipping industry, consisting of thousands of large vessels and tankers, contributes significant noise pollution by emitting loud, constant, droning, low-frequency sounds. The scientific literature has revealed the importance of reducing these noise impacts to ensure the survival of numerous depleted marine mammal populations. Under the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Policy Act, the current legal regime is capable of addressing noise impacts from shipping activities, but these laws have not yet been utilized to regulate the industry. Despite the apparent ability to treat shipping noise as a “take” under the MMPA and ESA, NOAA Fisheries has not taken regulatory actions to enforce those take prohibitions against the shipping industry. While the availability of the MMPA and NEPA as tools for enforcement through litigation depend on the existence of a federal agency action, the ESA can be enforced directly against shipping vessels that disturb marine mammals through noise production. This paper proposes that legal action against shipping companies under the ESA for a “take” through ocean noise could force the federal government to initiate enforcement of the shipping industry under its delegated authority. Alternative advocacy positions exist as well, including lobbying Congress to add a citizen suit provision to the MMPA or enact a new statute requiring certain vessel design standards intended to reduce noise output. However, given the modern Congressional gridlock, ESA litigation appears to be the most viable strategy available to advance the regulation of shipping noise.
A profession’s definition of a concept is a powerful act that illuminates key aspects, while leaving discarded notions in the dark. In 1971, Van Rensselaer Potter first coined the term “bioethics” to advocate for the exploration of medical science and values with the goal of protecting life on earth. But, in the years since, bioethics became solely focused on issues in medicine and health care without recognizing their broader links to the environment. This Note argues that it is shortsighted to view bioethics as divorced from the world outside hospital doors. It further argues that an expanded conceptual model of bioethics is necessary in light of the complexities of contemporary society. Bioethical analysis will be inadequate if the narrow scope of the current definition of bioethics remains unchallenged. If Potter’s broader view of bioethics were embraced, bioethical work would include examination of the moral and legal foundations for human health and environmental protection policies. Bioethical analysis could then invite debate on topics like land use and pollution control policies, for example, and not merely on patient care issues within the health care system.
Big cities produce a lot of sewage, which often contains pharmaceuticals, illicit drugs, and caffeine. These flushed pollutants can remain in wastewater even after processing by a wastewater treatment plant, and may have negative effects on marine organisms and ecosystems if introduced into the marine environment. California is home to Los Angeles, San Diego, and San Jose—three of the ten most populous cities in the United States. All three are located in coastal counties and utilize wastewater treatment plants (“publicly owned treatment works” or “POTWs”) that discharge treated wastewater effluent directly is expected to contain increasing concentrations of flushed pollutants, posing a heightened threat to the health of our coasts and the marine environment more broadly. However, monitoring and regulation of flushed pollutants is currently insufficient, allowing them to be introduced into the marine environment undetected. This raises serious concern that flushed pollutants may devastate the marine environment beyond repair. The precautionary principle, a central tenet of environmental law and policy, “asserts that regulators and decision makers should act in anticipation of environmental harm, without regard to the certainty of the scientific information pertaining to the risk of harm.” In the face of great uncertainty as to the amounts of flushed pollutants being introduced into the marine environment and the effects they will have on marine organisms and ecosystems, a precautionary approach is necessary to ensure adequate protection. This Article advocates for policy reform to increase monitoring and regulation of pharmaceuticals, illicit drugs, and caffeine in wastewater, and to ultimately minimize the amounts of these flushed pollutants that are discharged into California’s coastal waters.