Columbia Journal of Environmental Law

A Local Solution for a Global Problem

Andrew Shifren — 2022-01-30

Nitrogen pollution is one of the most pressing environmental problems in the U.S. today, with grave implications for human and environmental health. Agricultural activities release the most nitrogen pollution of any industry, but a combination of prescriptive regulation of farmers and voluntary adoption of best practices has not solved the problem. However, municipal ordinances encouraging the sale of EEFs (Enhanced Efficiency Fertilizers) could be a new approach to tackle nitrogen pollution. More than 11 million acres of corn farms, largely in just five states, apply fertilizer extremely inefficiently. These states could realize the most benefits from an EEF ordinance in the form of lowered costs for farmers, higher revenues for fertilizer companies, and fewer environmental and humanhealth problems caused by nitrogen. This Note describes the issue of nitrogen fertilizer pollution in the U.S., provides the reasoning for a municipal minimum sales share EEF ordinance, and proposes a sample ordinance that a municipality in Illinois, Minnesota, Michigan, Nebraska, or Ohio could adopt to manage the most serious effects of nitrogen pollution on public health and the environment. This Note then analyzes the history of ordinances that municipalities have passed in order to regulate certain products similar to nitrogen fertilizers. The litigation that ensued after these ordinances passed illuminates the likely legal hurdles that an EEF ordinance would face.

Environmental Ethics and Environmental Law

Zoe Makoul — 2022-01-30

This Note poses the question of whether—and how—lawmaking can create a platform for promoting an environmental ethic. There is a body of scholarship about how values or virtue ethics impact lawmaking, but this Note also explores the opposite—how lawmaking impacts the values or virtue ethics of the public. Environmental ethicists disagree about the very origins of environmental ethics. Some thinkers believe that environmental ethics stem from “core values” that are inherent to human nature. Others posit a set of “green virtues” that can be learned. But there is agreement that education through exposure to the natural world is fundamental to ethical development. Ideally, people develop green virtues that guide their everyday actions but, to encourage a true love of the natural world, their core values must be awakened; this is done locally, via connections to wild spaces. Through the creation of national parks and through public land-granting, law creates a platform that can contribute to the formation of environmental consciousness, from materializing the “wilderness” ideal to demonstrating the value of “otherness.” The relationship between environmental law and environmental ethics creates a virtuous circle—in both senses of the word—as virtue drives enriched environmental law as much as environmental law has the capacity to create green virtues. The virtuous circle concept risks the implied instrumentalization of virtues, robbing them of intrinsic realization by using them as policy tools. However, this is a false dichotomy; environmental law is a tool that can be used by a democracy to change itself by creating a different set of experiences to make concrete the values that we hold in abstraction or as aspiration. This Note draws on Aristotle’s virtue ethics to posit that lawmaking can create a holistic platform for people to learn how to practice an environmental ethic, which in turn promotes the passage of new regulatory and protective environmental laws.

The Value of an Endangered Species

Matthew Osnowitz — 2022-01-30

In the United States, the Endangered Species Act (ESA) represents the federal government’s paramount effort to protect endangered species. In no uncertain terms, the ESA prohibits harming endangered species by both private and governmental actors. Moreover, the Supreme Court determined that the ESA prevents courts from exercising their usual discretion when such actors take actions that will foreseeably result in harm to endangered species. Put simply, the ESA prevents courts from allowing harm to come to endangered species even if that harm is necessary for an immense benefit to human beings. This broad protection has been effective in preventing ecological loss in the U.S. But because of the breadth of the statute, courts must sometimes resolve disputes where harm to an endangered species is necessary to protect human health and safety. In these cases, courts have severely narrowed the ESA’s protections. Furthermore, changes in human and animal migration caused by climate change will pit human health against the welfare of endangered species far more often. Without better guidance from Congress, courts will likely continue to erode the strength of the ESA. This Note proposes expanding the ESA’s exemption process in order to forestall foundational attacks on the statute. By addressing this issue now, Congress can preserve the ESA’s core protections against increasingly problematic precedent.

Iowa’s Lost National Forests

Jess Phelps — 2022-01-30

Iowa is primarily an agricultural landscape. It is perhaps then not a surprise that Iowa lacks a national forest. This initial reaction, however, misses the fact that Iowa very nearly had several national forests covering thousands of acres in the state. This Article explores this history, examines why these national forests did not materialize, and provides context for the use of other potential tools for securing contemporary conservation objectives in the state.

To this end, Section II of this Article explores the state’s landscape history. Section III provides a history of the U.S. Forest Service and the creation of the eastern National Forests. Section IV specifically explores Iowa’s efforts towards establishing national forests. Section V briefly touches upon the state’s subsequent conservation efforts, while Section VI explores why more recent efforts to facilitate large-scale federal purchases have not materialized. Last, Section VII considers how current conservation tools may replicate at least some of the benefits that extensive national forests would have provided. Ultimately, Iowa’s lost national forests can help us to understand the process of National Forest formation, evolving conservation priorities, and the lasting benefits of landscape-level conservation efforts and how such projects can be pursued today.