Volume 19: Issue 2 (2022)
Nature’s Rights in Question: In Search for a Dialogue Between Legal Traditions
Yaëll Emerich
This article’s goal is to explore the Rights of Nature movement and to situate the movement within a dialogue between civil law, common law and indigenous legal traditions, notably the Anishinaabe tradition. While Rights of Nature clearly have symbolic force, it is appropriate to question the theoretical and practical consequences of giving Nature subjective rights, including the recognition process, the types of rights or interests protected, the persons through whom they are exercised, or even the possible sanctions in the event of infringement. This article holds that giving Nature (subjective) rights represents an important step forward for the protection of Nature and its interests. It is important, however, to ensure that this progress does not go against the initial objective of the proposal, by avoiding subjecting Nature to an anthropocentric framework which would not allow a break with possessive individualism. This article therefore envisages an alternative solution wherein Nature is a legal entity not necessarily personified but nonetheless possesses legally protected interests. On the practical side, this article suggests that a trustee or an administrator of the property of others could be charged with the implementation and protection of these interests of Nature, within a framework other than that of individual property. On this matter, Quebec civil law offers an innovative legal framework with the trust as a patrimony by appropriation detached from the real right of ownership and managed by an administrator of the property of others. The context of Nature in the City enables us to test this possibility in concrete ways, including the idea of the fiduciary responsibility or the commons.
Build First, Comply Later: NEPA Remedies and National Parks Conservation Association v Semonite
Nicole K. Pasho
This comment analyzes National Parks Conservation Association v Semonite as a case study on remedy. In 2017, the Army Corps of Engineers issued a permit to Dominion to build a power line across the James River in Virginia. That power line would stretch across an area significant to the United States’ founding as a nation, and which is part of the Colonial National Historic Park. But by the time the D.C. Circuit issued its opinion striking down the permit in 2019, the project had already been completed. How can a court furnish a satisfying remedy when the matter at the heart of the litigation is rendered a “fait accompli”? This comment will explore the two components of the court’s remedy in National Parks: remand without vacatur and the preparation of an Environmental Impact Statement. It argues that courts, and the D.C. Circuit in particular, are more likely to remand without vacating agency decisions when the decision involves a public utility. Most circuit courts consider some type of “public interest” factor in their vacatur analyses. When a public utility’s permit or certificate is at issue, these courts are often concerned with how the public will be affected due to public utilities’ close relationship to consumers. However, this may encourage public utilities to take advantage of this special consideration to push projects favorable to themselves. Turning to the issue of Environmental Impact Statements, this comment will discuss the importance of timeliness for the statutory purpose of the National Environmental Policy Act. Though the agency in this case may meet its statutory obligations by preparing an Environmental Impact Statement, the statutory purpose of NEPA was defeated once the project was completed. Finally, this comment will examine how the remedy in National Parks may encourage bad actors to contravene environmental administrative law requirements.
Eva Linde
This article reviews Benoît Mayer’s recent book, International Law Obligations on Climate Change Mitigation. The book identifies different sources of international law relating to climate change mitigation and discusses the specific content of these obligations. According to the reviewer, the book provides a helpful guide for readers new to the subject while at the same time offering in-depth discussions of—and interesting, often controversial, viewpoints on—specific aspects of climate change law. The focus of the review is on Mayer’s surprisingly sceptical assessment of human rights-based mitigation obligations, which the reviewer criticizes as overly restrictive.
