We are upgrading the repository! A content freeze is in effect until November 22nd, 2024 - no new submissions will be accepted; however, all content already published will remain publicly available. Please reach out to repository@u.library.arizona.edu with your questions, or if you are a UA affiliate who needs to make content available soon. Note that any new user accounts created after September 22, 2024 will need to be recreated by the user in November after our migration is completed.
 

ABOUT THIS COLLECTION

The Arizona Journal of Environmental Law & Policy (AJELP) is an interdisciplinary online publication that examines environmental issues from legal, scientific, economic, and public policy perspectives. This student-run journal publishes articles on a rolling basis with the intention of providing timely legal and policy updates of interest to the environmental community.

QUESTIONS?

Visit the Arizona Journal of Environmental Law & Policy website for more information.

Collections in this community

Recent Submissions

  • White Nationalist Parks, Eco-Fascism, and Conserving Global Capitalism

    Brayne, Gabriella (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    This article contextualizes fortress conservation as a violent system of green-colonialism that is rooted in eco-fascist ideology. Drawing upon the work of Aimé Césaire, I highlight how colonial capitalism is inherently fascistic, although prevailing historical narratives of the 20th and 21st century tend to obscure the fascist realities of settler colonial states such as the United States. With contradictions in capitalism rupturing through the crisis of climate/ecological disaster, our attention must also turn to the violence of eco-fascism as it has formed the environmental and conservationist policies of Western colonial powers, particularly in the creation of National Parks as intertwined with the concurring histories of removal, warfare and genocide. From tracing the early history of fortress conservation in the national building projects of settler colonial states, the article then turns to the militarized violence of imperialism and colonialism throughout the Global South in the contemporary management of fortress conservation projects, financed by Western aid development agencies and co-managed by ‘corporatised’ environmental NGOs. I argue that underpinning the Global North’s persistent interest in conservation parks is the ‘offshoring’ of global capitalism’s climate/biodiversity crisis into continued systems of colonialism, built upon the self-preservation of ecocidal capitalism and voyeuristic colonial desires for ‘untouched wilderness’ to whatever means necessary, normalizing the rise of eco-fascism in the West’s response to climate change. Campaigns against fortress conservation must work with strategic urgency to place pressure on Global South governments to halt evictions against Indigenous peoples, while also recognising the wider solidarity struggles to decarbonize, demilitarize, and ultimately to decolonize against the global extractivist economy of colonial capitalism - eager to outlive its day.
  • Reconciliacion de Tierra y Alma

    Breault, Angelantonio (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
  • Imagining Wilderness: The Wilderness Act's Sixty Years of Modern Indigenous Dispossession

    Ornstein, Edward (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    The Wilderness Act of 1964 turns 60 in 2024. It preserves a problematic legacy of Indigenous dispossession in its core text, which seeks to manage designated wilderness lands “without permanent improvement or human habitation… [so that] the imprint of man’s work [is] substantially unnoticeable.” After discussion of the history of “wilderness” conservation strategies, which places their origins in the era of the United States’ ethnic cleansing of the land of its Indigenous stewards, the negative ecological and cultural impacts are analyzed in context of the limited flexibility of agencies to adapt the narrowly construed Act. The case of Big Cypress National Preserve, in which yet another study seeking to effect a wilderness designation has been proposed atop Miccosukee and Seminole Tribal reserved rights, will be discussed as a case study. After demonstrating that the Wilderness Act creates systemically inequitable outcomes for Indigenous peoples, a means forward, through amendment of the Wilderness Act to accommodate Native land rights, is proposed.
  • From Colonial Bots to IndigiAI: The Complex Role of AI in Indigenous Advocacy

    Gaikwad, Vishal (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
  • Skewed Conservation Policy and the State Validation of Land Dispossession of Indgenous Peoples in Kenya

    Kiptoo, Washington (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    Protected Areas are an existential threat to the existence and survival of the Indigenous Peoples of Kenya. From the colonial era to the present, Indigenous Peoples have had to endure a century of land and natural resources dispossession despite regime changes. It is agonizing to note that some areas currently occupied by indigenous peoples have been registered as government lands. Thus, the indigenous occupiers become squatters in lands they inherited from their ancestors and are possible subjects of violent evictions by Kenya Forest Service Rangers and Kenya Wildlife Service, who are the agents of government with the mandate to enforce conservation measures. Indigenous lands registered as protected areas were not subjected to free prior and informed consent (FPIC) nor were the Indigenous owners compensated as required by law. This note will demonstrate how some indigenous communities, through support from human rights lawyers and NGOs, have successfully litigated against such injustices. Still, the government of Kenya has remained unresponsive in implementing recommendations and judgments calling for the restitution of illegal land deprivation.This paper documents instances in which protected areas, created in lands overlapping with unceded Indigenous Peoples’ territories and forming part of ongoing and previous court litigations, have been targeted by the government to implement mega infrastructural projects and private ecotourism. This paper thus brings to the fore the irony of the government of Kenya using conservation to justify the deprivation and discrimination of Indigenous Peoples' right to property, development, and equality before the law.
  • Foregrounding Human Dignity

    Laltaika, Elifuraha (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    This article will unpack the conceptual causal link between pervasive indigenous peoples’ rights violations in Africa and implementation of protected areas legislation devoid of respect for human dignity as an interpretive principle to guide implementation of the laws in question. Specifically, I will examine the extent to which protected areas laws of six selected Southern and Eastern African countries namely Botswana, Namibia, South Africa, Kenya, Tanzania, and Uganda foster respect for human dignity as a means of protecting rights of indigenous communities. A key finding of this article is that most of the laws enacted to establish and manage protected areas in Eastern and Southern Africa are human-dignity blind. This is because, despite occasionally undergoing cosmetic amendments since the attainment of political independence, the laws in question are largely relics of colonialism. In order to establish the causal link and draw the above conclusion, I will first explore the legal foundations of human dignity as exemplified by the UN Charter, the Universal Declaration on Human Rights, and Constitutions of the six study jurisdictions. I will also look at the disproportional targeting of indigenous peoples in protected areas as documented in two reports submitted by the UN Special Rapporteur on the Rights of Indigenous Peoples to the UN General Assembly. Relatedly, I will address a central question namely who indigenous peoples are in the African setting, followed by a survey of protected areas legislation, juxtaposed with framework environmental laws of the six study jurisdictions. Lastly, I will explore the potential change of storylines or value addition of enshrining human dignity in protected areas legislation. This article recommends inclusion of provisions on human dignity as a global prescription for remedying both the historical and continued injustices and discriminatory practices against indigenous peoples in the context of protected areas establishment, management, and expansion.
  • Protected Areas: These "States within a State" Require Separate Oversight Human Rights Mechanisms

    Chakma, Suhas (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
  • Reflections on Racism, Conservation and Human Rights of Indigenous Peoples

    Cali Tzay, Jose Francisco (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
  • Advancing Tort Law for Climate Displacement Compensation [Note]

    Todd Newsome, Haley (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    Climate change has already displaced people from their homes and is predicted to displace millions more in the coming decades. Involuntary climate-induced migration causes loss and damage before, during, and after the displacement. In this Note, I argue that the climate displaced should seek tort compensation from fossil fuel companies for this loss and damage. However, the existing tort system is not well-suited for climate displacement claims. Challenges for climate-displaced plaintiffs include establishing jurisdiction, navigating forum non conveniens, proving causation, and enforcing a favorable judgment. Tort law must advance to overcome these barriers. Necessary judicial changes include expanding jurisdiction, modifying the forum non conveniens analysis, using attribution science and alternative theories of causation, and developing methods to ensure judgment enforcement. With these solutions, the tort system can play a vital role in achieving compensation and justice for the climate displaced.
  • Landowners Can Receive Tax Benefits for Donating to the Future Management of Conservation Easements [Note]

    Michael, Jonathan (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    Conservation easements are supposed to place protections on land forever. But that requires a responsible party to forever monitor and enforce the easement’s terms. Monitoring and enforcement require resources, and someone has to provide those resources. Today, landowners who are donating or selling conservation easements to land trusts are often required to contribute funds for the future management of the easement, including a land trust’s general operating costs. If the conservation easement itself is donated, its value can be deducted as a charitable contribution for income tax purposes. But it is less clear whether other required payments for monitoring and enforcement of the easement can also be deducted as charitable contributions. Charitable deductibility is determined in a holistic, case-by-case analysis by the IRS and courts. Existing guidance is therefore vague, and experts are reluctant to make anything resembling substantial predictions. This note serves to fill in some of the gaps resulting from that vagueness. The short answer is: yes, so long as a conservation easement transaction is not considered quid pro quo, landowners can deduct their required contributions to land trusts for the future monitoring and enforcement of conservation easements.
  • Empowered Neighborhoods: Supporting Community Microgrids [Article]

    Gerard, Wesley; Singh, Sukhmani (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    In an era of climate change and increasing power outages, microgrids have the potential to significantly improve grid resilience and reliability. Because they can operate separately from larger electric grids, microgrids can often continue providing electricity service during broader grid outages caused by severe weather events. To the extent that solar- or wind-powered microgrids displace fossil fuel electricity generation, they also help to decarbonize energy systems. Unfortunately, electric utilities often view privately-owned community microgrids as competitive threats and have reasons to obstruct them within their exclusive service areas. Utility opposition and other factors have heretofore hindered community microgrid development in much of the country. This Article highlights the scope of community microgrids’ many benefits and advocates for statutory and regulatory changes capable of accelerating the deployment of community microgrid technologies across the United States.
  • Taking Wartime Mobilization Seriously: Utility-Scale Renewable Energy [Article]

    Basescu, Dylan (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    State environmental laws such as the California Environmental Quality Act (CEQA) have historically focused on the conservation and preservation of environmental conditions. This paradigm prioritizes issues such as pollution, land management, and resource sustainability. However, most jurisdictions which have sought to address climate change have expanded their clean energy production capacity through new physical infrastructure. Since this expansion consumes land and water resources and creates other environmental side-effects, it often produces conflicts between historical environmental conservation and preservation mandates and the urgent imperative to expand carbon-free energy generating capacity in order to reduce greenhouse gas emissions (GHGs). California has in the past created exemptions from certain review requirements in CEQA for socially beneficial projects and streamlined the review process for renewable energy generating facilities. This work proposes that California go further and create exemptions from CEQA review requirements for Utility-Scale Renewable Energy Projects (USREPs) in order to prevent vexatious litigation and promote renewable energy development. These exemptions should be modeled on the exemptions created for certain environmentally friendly housing and transit projects and should ensure that sufficient classical environmental safety criteria are still satisfied. While this work focuses specifically on California, its suggestions for regulatory reform are generally applicable to all states with an interest in developing thriving renewable energy sectors and mitigating the effects of climate change.
  • State Obligations to Protect the Climate System [Article]

    Reese, Braden (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    As the global climate continues to increase at an unnatural and unprecedented rate, nation States that have contributed the least to the crisis are experiencing the greatest and most immediate harm. Small developing island states like the Maldives, Vanuatu, and many others face extinction of their homelands as rising sea levels resulting from human dependence on fossil fuels continue to erode their coastlines until their territories are submerged entirely. The dire situation of these States highlights the injustice of mass carbon-producing countries—who are the most capable of adapting to the effects of climate change—not being held responsible for their contribution to the impending extinction of small island States. Fortunately, the United Nations General Assembly is formally seeking an advisory opinion from the International Court of Justice for clarification of State obligations to protect the climate system under international law. This Article undergoes an analysis of international environmental law, customary law, and human rights law to conclude that States, through integration of these areas of international law, have an obligation to protect the climate system to the extent that they cannot harm the human rights and environmental interests of other states.
  • Indigenous Peoples' Spiritual Rights to Medicinal Plants [Article]

    Avila, Sinnai (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    In the face of climate change, extractivism, discrimination against Indigenous peoples, and cultural appropriation, Indigenous knowledge and cultural heritage are under threat. This Note explores the status of Indigenous Peoples; rights to use their ceremonial plants by looking at the legal inequities that prevent Indigenous peoples from exercising their cultural practices and traditional ceremonies. Indigenous communities reside on territories where 80% of the world’s biodiversity is found. Indigenous peoples’ cultural and spiritual practices, traditional knowledge, and livelihoods depend on healthy biodiverse systems. This is one of many reasons why Indigenous land defenders risk their lives protecting their territories. Several factors pose challenges for Indigenous peoples seeking to protect and preserve their cultural practices, including their ceremonial plants like peyote, psilocybin, and ayahuasca. Indigenous knowledge keepers must be at the forefront of discussions involving their cultural practices and medicinal plants. Currently, United States domestic law is failing to protect Indigenous peoples’ spiritual and cultural practices even though it has stated it supports the United Nations Declaration on the Rights of Indigenous Peoples, recognizing Indigenous Peoples’ rights to cultural heritage and traditional knowledge. This article argues that the U.S. should implement international principles that recognize Indigenous peoples’ rights to ancestral cultural practices under the western notion of religious rights.
  • Decarceration to Combat Public Emergencies: Using COVID-19 Strategies in Anticipation of Climate Catastrophes [Note]

    Macy, Taylor R. (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2024)
    This Note examines decarceration strategies used during the COVID-19 crisis and proposes the application of these strategies in regions heavily affected by climate change. Detention centers do not have the resources to respond to public emergencies like climate change and the coronavirus. Extreme weather events such as extreme heat, wildfires, and flooding exacerbate inhumane conditions in detention centers. Recent cases on jail and prison conditions argue that these dangerous conditions violate the Eighth Amendment, but such claims are increasingly difficult to win. During the COVID-19 pandemic, courts, police departments, and other entities worked to decrease the number of people who were incarcerated through strategies like early release and alternatives to incarceration. These policies reduced the number of people in prisons by 16 percent, and so this Note explores the use of these policies in areas with high climate vulnerability. Proactive solutions aimed at reducing the incarcerated population would allow prison systems to better handle extreme weather events while reducing the number of people who are harmed during natural disasters.
  • The Texas Energy Grid: Measures Taken since Winter Storm Uri and How It Compares to Germany's Power Infrastructure [Article]

    Wicke, Charlotte (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2023)
  • Underfunded and Underappreciated: UNFCCC's Technology Mechanism and the Need for Stable Funding [Article]

    Stephens, Sam (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2023)
    This Article examines the United Nations Framework Convention on Climate Change’s (UNFCCC) Technology Mechanism and efforts to improve upon the work it has engaged in over the past decade. Created in 2010, the Technology Mechanism was the culmination of a nearly two decade-effort by the UNFCCC to establish an entity to facilitate the implementation of climate technology in developing countries. Like the UNFCCC, the Technology Mechanism is primarily funded by contributions from developed countries. Since its establishment, the Technology Mechanism has completed hundreds of projects helping developing countries obtain and develop the climate technologies they need to mitigate and adapt to climate change. Despite its successes, developing countries are not where they need to be to adequately mitigate and adapt to climate change, and many have called upon the Technology Mechanism to do more. Criticisms and suggested improvements have spanned from ambitious restructurings of the Technology Mechanism to simply increasing funding to the body. One critical issue the Technology Mechanism has faced is unpredictable and inconsistent funding. Developing countries have frequently advocated for establishing consistent multi-year funding to the Technology Mechanism, and this Article echoes these calls. By providing concrete funding years in advance, the Technology Mechanism will have increased financial stability that can allow for increased planning and help it address other more substantive criticisms. With the establishment of a Joint Work Programme at COP 27 to help coordinate and streamline the work of the Technology Mechanism, improvements are continuing to be made. However, to fully realize these improvements and activate the full potential of the Technology Mechanism, consistent and predictable year-to-year funding is needed.
  • Just Transition as Wellbeing: A Capability Approach Framing [Article]

    Majekolagbe, Adebayo (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2023)
    Since its inclusion in the preamble to the Paris Agreement in 2015, just transition has grown to become one of the most engaged subjects in climate change law and governance. The rationale of just transition proponents is simple: the wholesale socio-economic transition that climate change compels is costly, and those costs must be equitably distributed across society. A closer look at this Rawlsian conceptualization of just transition, however, unearths major flaws, including its faulty essentialization of jobs, emphasis on the means of justice rather than ends, and the localization of an intrinsically global phenomenon—climate change. This article addresses these flaws. Rather than the distributive and procedural emphases of ‘traditional’ just transition discourse, it is shown that a capability approach to just transition, which underlines socio-ecological wellbeing as the ultimate objective of just transition, is a more availing theoretical underpinning for just transition. The article highlights the flaws of distribution-centric just transition, draws examples from just transition policies and laws in Canada, the United States, and Australia, and discusses how recent developments in Europe are more aligned with the capability approach described here. The article concludes with a discourse on how international human rights law is a viable, albeit imperfect, vehicle for a well-being-focused iteration of just transition.
  • The Troubles with Mill Sites: Resolving Legal and Practical Barriers to Mining on Federal Lands [Note]

    Klouse, Evan (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2023)
    This Note examines legislative, administrative, and judicial solutions to the problem of properly planning for, classifying, and siting mine waste storage facilities on federal lands. Mill sites, which provide private parties surface access and occupancy rights to federal land for activities ancillary to mining, pose significant practical and legal issues discouraging their use for mine waste storage planning. The first is the occupation issue, characterized at two points: a chicken-and-egg problem in the exploration stages of a mine’s life, wherein a valid mill site must be occupied, even though the federal lands comprising the site cannot be occupied for mining purposes prior to the completion of the Mine Plan of Operations (MPO) review process; then, at the end of the mine life, a mill site featuring waste rock or tailings storage may be a permanent occupation of federal lands, causing both initial regulatory approval and future closure issues. Second, the number of mill sites that a miner may locate in connection with its claims has varied historically, with stricter interpretations resulting in little available real estate for waste disposal. Finally, mill sites must be located on non-mineral land, a status without a clear definition that could vary with time depending on economic conditions. Given the legal and practical issues posed by mill sites—largely dismissed or ignored by the Ninth Circuit—mine planners, government agencies, and the public would benefit from a streamlined solution to mine waste planning. Rising populations and an increasingly technological society make mining just as important today as ever, and interference with the industry’s ability to procure necessary resources is more harmful than helpful to society. Ideally, a waste storage solution would serve to make mine feasibility studies and permitting more efficient, predictable, and reliable while simultaneously upholding American economic and environmental values.