The Duke Environmental Law & Policy Forum began in 1991 as an interdisciplinary magazine published annually. Since then, the Forum has grown into a traditional environmental law journal. DELPF has retained its interdisciplinary roots and presents scholarship that examines environmental issues by drawing on legal, scientific, economic, and public policy resources. DELPF's affiliations with the Nicholas School for the Environment, the Terry Sanford Institute for Public Policy, and the Law School render it uniquely positioned to adapt to the increasingly interdisciplinary nature of environmental law. DELPF is student-run publication, with staff members from the Law School, the Nicholas School for the Environment, and the Terry Sanford Institute for Public Policy. New journal members, both JD and non-JD, are selected based upon their writing skills, research ability, and interest in both DELPF and environmental policy. DELPF presents an annual symposium each fall that attracts top academics, practitioners, and policy makers from across the nation. Recent symposium topics have included The Future Environmental Agenda: Environmental Law & Policy Issues Facing the Next President and A Charged Atmosphere: The Future of U.S. Policy on Global Warming.

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The Globethics.net library contains articles of Duke Environmental Law & Policy Forum as of vol. 1(1991) to current.

Recent Submissions

  • The (Human) Rights of Nature: A Comparative Study of Emerging Legal Rights for Rivers and Lakes in the United States of America and Mexico

    Macpherson, Elizabeth (Duke University School of Law, 2021-08-13)
    An international consensus of scientific experts is now demanding "immediate action" in response to the environmental, climate, and biodiversity crises. But are our legal and regulatory frameworks equipped to respond to the rapid pace of environmental degradation, biodiversity loss and climate change? What incidence is there, transnationally, of laws that seek to protect the Earth from the humans that inhabit it? In the past few decades, there is a growing social, legal, and political movement towards more ecocentric regulation of the planet, where new laws and institutions seek to protect natural resources for their own intrinsic value. In this paper, I consider recent efforts to protect the rights of rivers in the U.S. and Mexico, which are novel and emerging attempts to discover new pathways for enhanced protection of vulnerable waterways. These attempts are being pragmatically driven from the bottom up to the highest levels of the legislature or judiciary as local communities (and sometimes Indigenous Peoples) become increasingly frustrated with apathetic and complacent governmental responses to environmental challenges, using whatever legal tools and processes are available to them. However, rather than an Earth-centred revolution, efforts to protect the rights of nature are distinctly "human"; as communities appeal to human rights laws, and their enhanced constitutional status, to upset the status quo. There are important lessons to be learned from these experiences in other countries in terms of the ability to entrench transformative environmental protections via constitutional hierarchies and the potential for the rights and interests of humans to be both an enabler of, as well as a threat to, nature's rights.
  • Implementing Ecosystem-Based Management

    Gray, Brian; Harder, Jennifer; Bork, Karrigan (Duke University School of Law, 2021-08-13)
    Most freshwater ecosystems in the United States are in a state of collapse. Existing management efforts take a piecemeal approach, addressing individual stressors, managing the systems for individual benefits, and protecting individual species. These disjointed efforts are doomed to fail. Both the legal literature and the scientific literature are rich with articles extolling the advantages of ecosystem-based management; that is, simultaneous management of water, land, and organisms to achieve a desired ecosystem condition benefiting both native biodiversity and human well-being. This approach has succeeded in other aquatic systems, particularly marine ecosystems, but the ecosystem-based management approach has struggled for adoption in the freshwater ecosystem context. The primary challenge lies in implementation. Freshwater ecosystems face a complex web of local, state, and federal law, and those laws create a perceived legal barrier to adoption of ecosystem-based management. Nevertheless, the existing legal literature offers little practical guidance for developing the legal and governance framework to implement freshwater ecosystem-based management in practice. Using the state of California as a case study, this article shows that the California Water Board is empowered and well-positioned to implement freshwater ecosystem-based management in California. By demonstrating that existing state and federal laws allow and even support ecosystem-based management, this article lays out a new state-level legal framework for better management of freshwater ecosystems. This approach, which does not require controversial changes to state and federal law, offers a reasonable and realistic way to improve the state of freshwater ecosystems.
  • Journal Staff

    Duke University School of Law, 2021-08-13
  • Note: Modernizing Conservationism: Renewable Energy's Species-Preserving Effect and the Endangered Species Act

    Hamilton, Chase (Duke University School of Law, 2021-08-13)
    Environmental policymakers face a dilemma, for the construction and operation of renewable energy facilities mitigates ecologically destructive climate change in the long term but often adversely affects species in the short term. This paper provides empirical, legal, and normative resources for analyzing what I call "species clash." In most cases, renewable energy is much more helpful than harmful when it comes to preventing species extinctions, but the Endangered Species Act paradoxically poses a barrier to such species-preserving projects. Framing the benefits of renewable energy in terms of species conservation may not only help secure speedy and cost-efficient compliance with the Act, but also foster a more rational conservationism fit for an era of climate change.
  • Essay: Forks In the Road

    Vandenbergh, Michael P.; Gilligan, Jonathan M. (Duke University School of Law, 2020-12-31)
    This Essay outlines a simple heuristic that will enable public and private policymakers to focus on the most important climate change mitigation strategies. Policymakers face a dizzying array of information, pressure from advocacy groups, and policy options, and it is easy to lose sight of the forest for the trees. Many policy options are attractive on the surface but either fail to meaningfully address the problem or are unlikely to be adopted in the foreseeable future. If policymakers make the right decision when confronting three essential choices or forks in the road, though, the result will be 60% to 70% reductions in greenhouse gas emissions, an amount that will keep widely-adopted climate mitigation goals in reach. The three options are decarbonization of the electrical grid, electrification of the motor vehicle fleet, and electrification of buildings. International, national, and subnational officials, philanthropists, corporate executives, advocacy group leaders, and households all have the ability to prioritize these three options in their regulatory, purchasing, and other actions. If they choose these three decarbonatization options, many other mistakes can be made without jeopardizing the achievement of widely adopted emissions targets. If they make the wrong choice, however, few combinations of other viable options can achieve the necessary reductions. In the face of a growing consensus that immediate, major emissions reductions are required, the forks in the road heuristic can provide policymakers with the framework necessary to make smart decisions and ignore the noise surrounding climate law and policy.
  • Where the Deer and The Antelope Play:Conserving Big Game Migrations As an Endangered Phenomena

    Stoellinger, Temple; Albers, Heidi J.; Middleton, Arthur; Shogren, Jason F.; Bonnie, Robert (Duke University School of Law, 2020-12-31)
    In the American West, high-profile big game species including mule deer, antelope, elk, moose, bison and bighorn sheep use large landscapes to migrate between winter and summer habitats to obtain the resources they need to survive. The big game species are a vital part of the West’s ecology, economy, and culture and are valued by local, national, and international stakeholders. Thanks to large parcels of private and public land and a low human population, many parts of the American West still provide some of the best big game habitats in the world. But these vast, intact landscapes are under threat by ongoing habitat loss and disturbances to seasonal and migratory habitats that result in declines in big game population and the disappearance of migrations. Addressing the challenge of conserving big game populations and the endangered phenomena of seasonal migration across large landscapes in the American West will require dynamic, innovative, and flexible legal approaches. Those legal approaches should recognize the biological needs of the species themselves and reflect economic policy analysis of conservation in landscapes with multiple land managers. Considering both integrated biological and economic decision frameworks and incentive-based tools to define and implement legal and policy structures can produce migratory species conservation more efficiently than less integrated approaches. Conservation of big game migrations is now a growing priority and initial conservation efforts are beginning to emerge, including the Department of Interior Secretarial Order 3362 “Improving Habitat Quality in Western Big-Game Winter Range and Migration Corridors” and state policies including the Wyoming Game and Fish Department Ungulate Migration Corridor Strategy. This interdisciplinary paper evaluates those emerging policies and finds that the policies miss opportunities to provide higher levels of conservation of migratory species by failing to address key ecological characteristics of migratory species and to incorporate economically efficient hierarchies of management and policy. We conclude by offering thoughts on how future conservation polices might be designed to incorporate both ecology and economics to better conserve migrations.
  • Note: Foundational But Not Fundamental: No Right To the Environment

    Torres, Robert (Duke University School of Law, 2020-12-31)
    The world is on fire, and despite a general consensus among scientists that climate change is an imminent threat, recent decades have been devoid of legislatures capable of enacting meaningful legislation. The flames rage on as our President, an outspoken denier of climate change, adds fuel to the fire by stripping whatever attempts had been previously made to mitigate the effects of climate change. Forced to live in what seems a forsaken world, nineteen youths, a nonprofit organization, and a scientist on behalf of all future generations brought suit against the United States government, seeking more robust environmental protections. In a landmark decision that garnered much thoughtful attention, Juliana v. United States, held, in pertinent part, that the U.S. Constitution protects a fundamental right to a climate system capable of sustaining human life. After nearly a century of looking past the written words of the Constitution to find intrinsic rights, twenty years ago the Supreme Court dictated a rigid two-part test for sustaining alleged fundamental rights. The Glucksberg test came to fruition despite decades of justices arguing for a more fluid analysis. That is until Justice Kennedy penned Obergefell v. Hodges. Justice Kennedy carefully sidestepped Glucksberg so as not to offend it and instead adopted that fluid approach in finding certain fundamental rights, leaving two possible paths. This Note argues that under the current formation of Supreme Court substantive due process jurisprudence, the Constitution does not protect a fundamental right to a climate capable of sustaining human life. Neither Glucksberg nor Obergefell provide a proper avenue through which plaintiffs may successfully seek redress. Rather, plaintiffs must utilize other mechanisms to effectuate a lasting change, such as amending the Constitution, employing the political process, or persistently litigating in a piecemeal fashion.
  • Journal Staff

    Duke University School of Law, 2020-12-31
  • Integrative Environmental Law: A Prescription for Law in the Time of Climate Change

    Flournoy, Alyson C. (Duke University School of Law, 2020-06-01)
    As the magnitude of the threat posed by climate change has become increasingly apparent, scholars and practitioners have begun a dialogue about how to reform environmental law to meet the challenge. Concepts like adaptive management, sustainability, and resilience have emerged in succession, as policy makers and scholars search for new moorings for our ethical and legal framework. While useful, these concepts have failed to provide a vision, goal, or solid ethical grounding for environmental law in the era of climate change. This project takes a new approach by exploring what we can learn from the field of Integrative Medicine. The history of the development of Integrative Medicine offers interesting parallels, contrasts, and lessons for environmental law as it grapples with the existential challenge of climate change. The article highlights the striking similarities between the limitations of conventional medicine that led doctors to pursue an integrative approach and the limitations that have stymied progress under our environmental laws. After reviewing developments in environmental law and policy that align with a path towards an integrative approach, it outlines the key unaddressed challenges and prescribes a path towards integrative environmental law. It describes how these reforms, grounded in lessons from Integrative Medicine, will help us to better meet the challenges of climate change. In closing, it offers several case studies of ongoing law and policy advocacy that illustrate how an integrative approach can overcome the limitations that have impeded our progress in addressing climate change and other environmental challenges.
  • Administrative Law’s Extraordinary Cases

    Skinner-Thompson, Jonathan (Duke University School of Law, 2020-06-01)
  • Journal Staff

    Duke University School of Law, 2020-06-01
  • Agricultural Exceptionalism in Vermont Land Use Law

    Phelps, Jess (Duke University School of Law, 2019-01-21)
  • The Complexity Dilemma in Policy Market Design

    Aagaard, Todd S.; Kleit, Andrew N. (Duke University School of Law, 2019-01-21)
    Regulators are increasingly pursuing their policy objectives by creating markets. To create a policy market, regulators require firms to procure a product that is socially useful but that confers little direct private benefit to the acquiring party. Examples of policy markets include pollutant emissions trading programs, renewable energy credit markets, and electricity capacity markets. Existing scholarship has tended to analyze policy markets simply as market-based regulation. Although not inaccurate, such inquiries are necessarily incomplete because they do not focus on the distinctive traits of policy markets. Policy markets are neither typical regulations nor typical markets. Concentrating on policy markets as a distinctive type of market brings to light common characteristics of such markets, which in turn generates insights into how they can be used more effectively to implement policy. In particular, this Article focuses on a recurring fundamental challenge in policy market design: managing complexity. Typical markets manage complexity through market forces. As a regulatory creation, however, policy markets require regulators to manage their complexity. This poses what we call the complexity dilemma, which requires regulators to balance strong pressures both toward and away from complexity. The central argument of this Article is that although policy markets are an important part of a regulator’s toolkit, they are also subject to complexity that limits their usefulness. Understanding the complexity dilemma and its crucial role in policy market design forms an essential step toward progress in improving the design and function of these markets.
  • What can the Apple Teach the Orange? Lessons U.S. Land Trusts can Learn from the National Trust in the U.K.

    Gwin, Lauren; Owley, Jessica; Fairfax, Sally K. (Duke University School of Law, 2019-01-21)
    The National Trust in England, Wales, and Northern Ireland is one of the oldest and most revered private land conservation organizations in the world. While the private land conservation movements in the United States and the United Kingdom began at a similar time and with similar tools, conservation attitudes and methods in the two countries diverged. Today, the National Trust dominates land conservation in the U.K. while the strength of the U.S. movement is the energy of over 1,500 smaller organizations operating at different scales across the country. Despite the differences, this project looks to the National Trust in England and concludes that three elements of the National Trust’s experience provide important insights for U.S. land trusts rethinking their programs as political and environmental change engulfs the planet. First, the National Trust has gone through several iterations in its understanding of general public benefit and public access to protected properties in a way that most U.S. land trusts have yet to do. Second, National Trust experience suggests that U.S. land trusts could become more engaged in land-use regulations rather than presenting themselves primarily as an alternative (private, compensated, voluntary) thereto. Finally, the National Trust’s approaches to balancing agricultural productivity with sustainability provide useful models to study and emulate in the management of working landscapes. Many of the lessons learned by the National Trust could enrich private land conservation in the United States in an era of government withdrawal from environmental protection and growing impacts of climate change.
  • China’s Emissions Trading System: Steps Toward Article 6 Linkage

    Melvin, Melinda (Duke University School of Law, 2019-01-21)
  • Journal Staff

    Duke University School of Law, 2019-01-21
  • Pollution Trading and Environmental Injustice: Los Angeles’ Failed Experiment in Air Quality Policy

    Bansal, Shipra; Kuhn, J. Scott; Drury, Richard Toshiyuki; Belliveau, Michael E. (Duke University School of Law, 1999-04-01)

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