Member Scholars Take Center Stage in Prestigious Environmental Law Anthology

I’m thrilled to share that the Center for Progressive Reform features prominently in the pages of a forthcoming anthology of last year’s best writing on environmental law.

Three of five articles selected for inclusion in the 2022 edition of the anthology were written or co-written by our esteemed Member Scholars — law professors who generously donate their time and expertise to help us achieve our mission to create a more responsive and inclusive government, a healthier environment, and a just society. A fourth article was authored by a Member Scholar who is on leave from the center while serving in the Biden administration.

The competition was fierce. Every year, leading environmental law professors and practitioners review hundreds of articles in the previous year’s law review literature — on topics ranging from land use and development to energy and natural resources — and select the best of the bunch. The top articles are then published in Land Use and Environment Law Review, Thomson Reuters’ prestigious collection of “the most insightful thinking” on the topic.

For the 2022 edition, more than 30 experts in environmental law identified 14 of the nation’s best articles, and 15 second-level reviewers then selected the top five for publication.

“Representation in this prestigious publication is a tremendous honor,” Rob Verchick, the president of our Board and a law professor at Loyola University New Orleans, said. “The fact that five of our Member Scholars authored or co-authored four of the five articles selected for inclusion speaks to the brilliance of our colleagues and co-travelers in environmental and public health law — and to our organization’s collective, cutting-edge work to harness the power of law and public policy to build a better and more sustainable world.”

I join Rob in sending heartfelt congratulations to all those selected.

Anthology articles include those written by:

• Member Scholars David Adelman and Robert Glicksman. Adelman, a law professor at the University of Texas, holds a doctorate in chemical physics and, in addition to academia, has worked in environmental advocacy and government. Glicksman, a law professor at the George Washington University in Washington, D.C., and a member of our Board, is a leading expert on issues including pollution control and public natural resources law. This is Adelman’s second article selected for inclusion in the anthology and Glicksman’s third. Their joint article, published in the University of Colorado Law Review, argues that citizen suits fail to live up to their reputation as a key backstop to lax or ideologically antagonistic administrations. Drawing on 15 years of litigation evidence, they find that limited resources and institutional barriers severely constrict the public’s ability to file environmental suits against the federal government, and they argue for alternative citizen action instead. At the same time, their findings negate critiques that citizen suits usurp government authority without the safeguard of political accountability.

• Member Scholar Robert Fischman, professor of law at Indiana University. Fischman is an expert on public land management, endangered species recovery, climate change adaptation, and conservation, and he is a founding board member of the Conservation Law Center. His article, co-authored by two colleagues and published in the Yale Journal on Regulation, examines nearly 200 protective regulations issued under the Endangered Species Act (ESA) that tailor federal restrictions to the ecological and social circumstances of particular extinction threats. The authors find that collaborative governance transforms the law from a statute prohibiting certain outcomes (such as harm or jeopardy to a species) to a regulatory program implementing collaboratively crafted best practices, similar to pollution control statutes. He and his co-authors note that paradoxically, this may improve the prospect for species recovery, even with regulations that are less stringent than standard statutory prohibitions. Fischman’s past work has won twice.

• Member Scholar Dave Owen, a law professor at the University of California, Hastings, who teaches courses in environmental, natural resources, water, and administrative law. Owen’s article — originally published in the Stanford Law Review — explores law relating to groundwater, an increasingly important natural resource as our climate changes but one that has been governed by lax and uneven legal regimes. He focuses on groundwater recharge, the process by which rainfall, snowmelt, and surface water infiltrates the soil and recharges aquifers. His article offers a lay of the legal land and explores how to construct more intentional and effective law.

A fourth article was written by Sarah Krakoff, a law professor at the University of Colorado at Boulder who is on leave from the Center while serving in the U.S. Department of the Interior. Krakoff is an expert on legal issues relating to Native Americans, public lands, and natural resources, and her article — originally published in the University of Colorado Law Review — explores the Grand Canyon National Park on its 100th anniversary through the lens of law, politics, and power. It examines how law facilitated the violent displacement of Indigenous peoples from the park, deepened racial inequity, and fell short of protecting against sexual harassment and discrimination. Krakoff’s article ends with a discussion of how law may yet help our national parks become our nation’s “best idea.”

The fifth article selected for the anthology was written by Bruce Huber, a law professor at the University of Notre Dame, and published in the Washington University Law Review. Huber finds that property owners have little incentive to retain or restore contaminated, depleted, or derelict property and great incentive to abandon it, as demonstrated by economic busts in coal and oil and gas markets. The increasing presence of “negative-value property” demands legal tools to ensure owners take responsibility for their property, he writes.

The 2022 edition of Land Use and Environment Law Review will be published in September.

The anthology reveals the “diversity, depth, and quality of writing in our field,” J.B. Ruhl, a law professor at Vanderbilt Law School and co-director of the Energy, Environment, and Land Use Program said in a message posted on a listserv for environmental professors. “It is artificial to think that five articles can adequately capture all that, but it is a real treat to see the reviewers engaging thoughtfully at every stage to find a small collection of articles strongly representing what we do.”