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Volume 2015, Number 1


Articles

Environmental Privacy
Katrina Fischer Kuh

The purpose of this Article is not to anticipate whether or how the Fourth Amendment might apply to specific efforts to collect information about environmentally significant individual behaviors. The purpose is to discern the considerations that have proven salient in balancing environmental regulation and privacy to date that may likewise be relevant to navigating privacy concerns that arise with respect to policy directed to environmentally significant individual behaviors. 

In this regard, the Article’s survey suggests that neither the fact that environmentally significant individual behaviors must be aggregated to produce environmental harm nor the fact that individuals, as opposed to commercial entities, experience the privacy intrusions involved dictates that privacy concerns will override the needs of regulation. As evidenced by nuisance law, that individuals impose an environmental externality can be a strong basis for minimizing privacy interests. As evidenced by the hunter enforcement cases, even where aggregation is required and individuals are the subject of regulation, privacy balancing can favor regulation. Notably, however, the articulation of state interest in the hunter enforcement cases is clear and strong. Those contemplating, crafting, and implementing policies addressed to environmentally significant individual behaviors should take care to articulate the strongest case possible that the information sought furthers an important state interest. Privacy concerns need not derail the development of sophisticated policies aimed at reducing harms arising from environmentally significant individual behaviors, but a concerted effort will be required to demonstrate the environmental value of limiting harms from environmentally significant individual behaviors. A concerted effort will also be required to demonstrate that information about environmentally significant individual behaviors is important to effect policies directed to those behaviors and that privacy balancing should therefore favor disclosure to enable regulation.

2015 Utah L. Rev. 1 | (Download PDF)

Myths of Environmental Law
Albert C. Lin

Environmental law is pervaded by myths i.e., assumptions that are inaccurate, misleading, or false. These myths arise in various contexts, ranging from wetlands mitigation schemes and pollution credit trading programs to legal regimes premised on the concept of sustainability
 
This Article explores several myths of environmental law their origins,and their roles. While political reasons explain in part the creation and prevalence of these myths, more is at work behind these myths than mere politics or failures to implement the law. The myths of environmental law facilitate the management of ecologically complex systems by providing a reductionist account of them. Beyond that, these myths serve important expressive functions in communicatingsocial attitudes and values, legitimating social institutions and practices, and maintaining social solidarity. Awareness of myth’s roles in environmental law can enable society to addresslegal shortcomings that are thereby revealed and to reject or replacethose myths that undermine environmental law’s goals.

This Article is the first to identify a problem with a factually dependent post-sale duty to warn—it will most likely result in liability for small manufacturers, but not large manufacturers. This is because the costs of issuing the warning for a small manufacturer will always be smaller than for a large manufacturer. This Article is also the first to argue that a factually dependent post-sale duty to warn is inconsistent with the underlying purposes of products liability law and general public policy. Although the factually dependent post-sale duty to warn seems like a perfect solution to the overburdening problem, courts should not adopt it.

2015 Utah L. Rev. 45 | (Download PDF)

Formality and Informality in Cost-Benefit Analysis
Amy Sinden

Cost-benefit analysis (CBA) is usually treated as a monolith. In fact,the term can refer to a broad varietyof decision making practices, ranging from a qualitative comparison of pros and cons to a highly formalized and technical method grounded in economic theory that monetizes both costs and benefits, discounts to present net value, and locates the point at which the marginal benefits curve crosses the marginal costs curve.This article develops a typology that helps to conceptualize the multiple varieties of CBA along a formality - informality spectrum. It then uses this typology to analyze the treatment of CBA by the academic community and the three branches of the federal government. In academic and policy circles, the formal end of this spectrum generates far more controversy than the informal end. Additionally, the law (federal environmental statutes and case law) seems to favor informal over formal varieties of CBA. Nonetheless, the executive branch appears to be moving toward the formal end of the spectrum. Executive Orders and guidance documents direct agencies to conduct a highly formal mode of CBA. And anecdotal evidence suggests that agencies often go out of their way to give their CBAs the trappings of formality, sometimes in ways that lead to irrational results. I argue that 1) failing to distinguish between formal and informal CBA, and the many varieties in between, has led to muddled thinking and to misuses of CBA; and 2) the trend toward formality in the executive branch is out of step with Congress and the courts and may be counter productive, where, for example, it leads to what I call “false formality” — a corruption of CBA that can occur when agencies fail to clearly and consistently define where on the formality-informality spectrum a particular CBA falls.

2015 Utah L. Rev. 93| (Download PDF)

Rethinking the Geography of Local Climate Action: Multilevel Network Participation in Metropolitan Regions
Hari M. Osofsky

As the United States and the world become increasingly urbanized, cities are a key site for addressing the problem of climate change. However, urban climate change action is not simply about local officials making decisions within their cities. In major U.S. urban areas, “local” involves multiple layers of government, including county and metro-regional entities. Moreover, many of the cities taking action on climate change also participate in and shape networks of local governments based at state, regional, national, and international levels.

This Article argues that multilevel climate change networks could be more effective by embracing this geography of local action and the pressing need to foster action by suburban cities. Most emissions take place in the suburban areas of metro regions, but these networks generally do not focus on the particular needs of different types of suburban cities.This Article provides a novel analysis of patterns of participation in climate change networks by cities in six major U.S. metropolitan regions—Atlanta, Chicago, Denver, New York, San Francisco, and the Twin Cities—as a basis for proposing practical strategies and areas for future research. It considers what types of cities participate in which networks and where stronger and weaker network interlinkages occur. The Article concludes that networks inadequately (1) differentiate by city and metro-regional type and (2) coordinate resources and strategies. It suggests ways in which networks could do so to maximize the number of cities participating in them and the participation level of those cities.

2015 Utah L. Rev. 173 | (Download PDF)

Notes

Treating the Blue Rash: Win-Win Solutions and Improving the Land Exchange Process
Smith Monson

The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies — whose mandate is to protect environmentally sensitive areas — and state trust land authorities — whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests.

Legislative land exchanges present potential win - win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the process for administrative exchanges Congress could promote more efficient exchanges and increase cooperation between federal and state trust land managers. Thus, Congress should provide funding for land exchanges involving environmentally sensitive areas. Additionally, Congress should amend FLPMA’s public interest and equal value requirements to inc entivize cooperation in the administrative land exchange process.

2015 Utah L. Rev. 241 | (Download PDF)

The Keystone XL Pipeline and the Dormant Commerce Clause: Would Action by Congress Preclude Adequate Environmental Regulation at the State Level?

S. Shane Stroud

The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values. As long as a State does not needlessly obstruct interstate trade or attempt to place itself in a position of economic isolation, it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources.

2015 Utah L. Rev. 271 | (Download PDF)


 



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