Molly Barker and Ankur Tohan*

Carbon regulation in Washington is about to get more complicated. In March 2021, the Washington State Department of Ecology (DOE) issued a conceptual framework^[1] and draft rulemaking language^[2] for public comment on Greenhouse Gas Assessments for Projects (the “GAP Rule”).^[3] The release of the GAP Rule may—as a result of providing the first framework of its kind in the state for evaluating carbon footprints on major industrial projects—lay the groundwork for more enforceable carbon regulations. The GAP Rule may also increase competition on low carbon project design or may prompt the allocation of more corporate dollars toward mandated mitigation measures.

Continue reading “Bridging the GAP Between Environmental Assessments and Carbon Reduction Mandates” →

Roger Wynne*

Yim I and Yim II, issued in November 2019, clarified two aspects of constitutional law key to land use disputes in Washington courts. When considering regulatory takings and substantive due process claims, the Washington Supreme Court has always held the Washington Constitution provides no greater protection than the U.S. Constitution, and that a claim under either Constitution should be subject to the same analysis. But for decades the Court applied analyses—to federal and state claims alike—at odds with the federal analyses. Consistent with the Court’s long-standing intent, Yim I and Yim II realigned Washington’s approach with federal law.

Continue reading “Regulatory Takings and Substantive Due Process in Washington after Yim I and Yim II” →

Welcome the ELUL Articles Blog, a newly minted and reformatted version of the ELUL Newsletter from yesteryear. This launch has been a long time coming. We have worked with the WSBA ELUL Executive Committee and section members for two years to move the old newsletter to a new online resource. Several goals animated this change in approach. First, there was a desire for a more nimble and responsive resource for members. This meant seeking a user-friendly, online platform through which we could quickly address newsworthy events affecting ELUL practitioners. By removing formal elements that slowed publication of the previous newsletter, we hope to notify members about significant developments in the law in a timelier manner. Our second aim was to present shorter, easier to digest articles. People do not read the web, they skim it. We want to make information readily accessible and engaging.

Today, we are posting a collection of the initial articles we requested from attorneys as we have attempted to launch this online resource through a series of full-fits and half-starts. It seems inconceivable that we first requested articles in 2018, when we began the transition from a newsletter to an online vehicle. This transition has taken longer than expected, and the delay in posting these articles rests solely with us as editors. Each author provided timely, relevant material, and we thank the authors for their efforts and their patience.

With that being said, we are thrilled to launch this blog with three articles that contain valuable summaries and insights. First, you will find an article written in 2018 about the Washington Supreme Court’s Pope Resources decision, which addresses owner/operator liability under the Model Toxics Control Act. Second, we have included an article discussing the Washington State Court of Appeals decision in the water resources case Crown West v. Ecology, centering on the interpretation and application of the Municipal Water Law. Finally, you’ll find a discussion of the 2019 Knick v. Township of Scott decision from the United States Supreme Court, which centered on whether property owners must exhaust state remedies before pursuing takings claims in federal court.

Although the COVID-19 pandemic has upended our daily routines, it has not prevented new decisions with wide-ranging implications to our legal practices. Developments in environmental and land use law march on. COVID-19 itself has affected how lawyers work, and how land use, environmental cleanup, enforcement, and defense operate. There is plenty about which to keep ELUL members apprised. Again, we thank the initial article writers, and look forward to building this resource moving forward.

If you have an idea for an article concerning a recent development and can discuss it in 800–1000 words, please contact us. In light of recent protests and demonstrations, we would be particularly interested in perspectives on environmental justice and diversity and inclusion in environmental and land use law. In the meantime we will be reaching out to attorneys, policymakers, wonks, law students and professors, and everyone in between to build this new resource. We welcome your thoughts and input, and look forward to crafting a useful tool for your practices.