Columbia Journal of Environmental Law

When Canons Can Corrupt

Thomas McGarity — Mon, 04 Aug 2025 00:00:00 +0000

Administrative law is emerging as a major focus of the Roberts Court’s efforts to reshape American society. And the primary vehicle for the Court’s transformation of administrative law is the clear statement rule, which provides that federal agencies must point to clear language in their enabling statutes when they address issues that trigger the clear statement rules. In administrative law, those issues include federalism, major questions, and property rights. The demise of the Chevron doctrine is unlikely to disturb this trend, because the normative clear statement rules examined in this article go beyond nondeference to agency statutory interpretation to limit Congress’ power to enact statutes containing broad language empowering agencies to adapt to changing circumstances.

This article explores the virtues and disadvantages of aggressive judicial deployment of clear statement rules and concludes that the considerable disadvantages outweigh the modest virtues. The clear statement rules have no textual basis in the Constitution or statute. They are instead built on norms that are putatively located somewhere in the Constitution, but in fact are mirages that appear concrete from a distance, yet disintegrate on close inspection. They are therefore easily manipulable to achieve policy outcomes preferred by the judges applying them. At the same time, they unjustifiably limit Congress’ power to use broad language in statutes to allow implementing agencies to adapt to changing conditions, technological advances, and attempts by regulated entities to circumvent implementing regulations. Furthermore, the high bar for clarity that the Supreme Court has established and the vanishingly small likelihood that Congress will react to a judicial remand with legislation specifically empowering the agency to take the judicially rejected action ensures that clear statement rules are in reality weapons in a broader assault on the administrative state. As such, they are undermining the legitimacy of judicial review.

The article briefly probes possible responses to the judicial aggrandizement represented by clear statement rules in administrative law. Among other things, Congress could amend the Administrative Procedure Act to prescribe a standard for judicial review of agency statutory interpretation that precludes judicial use of clear statement rules. Because it is highly unlikely that proponents of protective federal regulation will persuade Congress to act in an era of extreme political polarization, however, the article concludes that the best way for the Court to restore the legitimacy of judicial review is to approach the task of statutory interpretation with greater humility and less enthusiasm for advancing a libertarian agenda.

Contracting the Void

Madeleine Lewis, Tara Righetti — Mon, 04 Aug 2025 00:00:00 +0000

Carbon capture and sequestration (CCS) is poised to play a critical role in efforts to mitigate climate change. As CCS projects proliferate across the United States, they are fundamentally recasting the nature of certain property rights in the subsurface. This has given rise to novel legal and economic questions regarding the acquisition and valuation of pore space for long-term carbon dioxide (CO₂) storage. This article examines the emerging legal frameworks and market dynamics for transactions of pore space for geologic carbon sequestration, contributing both a theoretical and uniquely empirical perspective on early transactional models and impacts to the long-term development of the CCS industry.

This article offers the first empirical assessment of compensation structures in pore space contracts. Analyzing structures from publicly available agreements, it reveals how project developers and landowners are allocating risk and value at different stages of project development. This illustrates how uncertainties associated with the extent of the subsurface resource, revenue sources, and the timing of development impact deal structure. This has led to emerging trends such as phased bonus payments, dynamic rental structures, and volumetric compensation mechanisms. The structure of these contracts incorporates aspects of other depletable resource contracts, such as oil and gas leases.

Carbon sequestration, however, requires greater commonality of pore space resources to assure adequate storage capacity and manage environmental and containment risks. This can require tremendous amounts of land and coordinated operations within the project area. These differences, along with the vital role of carbon removal to climate mitigation, provide an opportunity to critically explore the choice to develop carbon sequestration projects using the same models adopted for oil and gas. Land acquisition adds cost and complexity to these projects. Moreover, landowners may defer leasing until markets are more developed or subsurface resources are more fully characterized, increasing the ultimate cost of climate mitigation. While states have endeavored to reduce transactions costs through legislation, the combination of property law and political choices regarding the development of CCS projects may ultimately impede the timely achievement of climate mitigation as a public good.

Mitigating Damage from Natural Disasters

Danielle Richardson — Mon, 04 Aug 2025 00:00:00 +0000

Over the last several decades, the frequency and severity of natural disasters and extreme weather events have been increasing due to climate change. As a result, these extreme weather events have had, OR are having, a greater effect on communities and infrastructure than before. Although there are ways of constructing buildings to mitigate damage and economic loss from natural disasters, many jurisdictions have not adopted these standards or have not implemented them in all respects. Following natural disasters, state and local governments often respond by updating their building codes to provide some level of resiliency for the next natural disaster. However, the codes often only require new buildings to meet these construction standards. Pre-existing buildings are often left untouched, even though in many cases they could be retrofitted to be more resistant to natural hazards as well. This especially impacts low-income and minority communities, as they are already more affected by natural disasters and often do not have the capability to move out of high-risk areas and into buildings that fit the new, resilient standards. This Note discusses the policy and legislative changes that can be made in order to require pre-existing buildings to meet the updated building code standards and become hazard-resistant.