Justin R Pidot

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Journals/Publications

• Pidot, J. R. (2020). Compensatory Mitigation and Public Lands. Boston College Law Review, 61(3), 66.
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  Abstract: The Bureau of Land Management (BLM) manages America’s public lands for a multiplicity of uses and values. This effort requires difficult tradeoffs, because allowing one use, like oil drilling, will displace others, like recreation or wildlife habitat. Compensatory mitigation—the practice of requiring land users to offset their environmental harms—provides an important mechanism for ad-dressing use conflicts, by enabling intensive development in designated areas, while conserving the ecological integrity of public lands as a whole. Despite its potential to balance competing interests in public lands, compensatory mitigation has come under fire. Former Interior Secretary Ryan Zinke described compensatory mitigation as “un-American” and “extortion,” and under his leadership, the BLM disclaimed authority to require it, never mind that the agency had done so for decades. The policy has persisted under the leadership of Secretary David Bernhardt. This Article examines the history of public land law, the development of environmental mitigation policies across the federal government, and three interlocking provisions of Federal Land Policy and Management Act of 1976—the Multiple Use Mandate, the Land Use Planning Mandate, and the Anti-Degradation Mandate—to reveal that the BLM has ample authority to require compensatory mitigation. It then assesses the circumstances in which resource users can appropriately be required to offset the impacts of their uses.
• Pidot, J. R. (2020). Contingent Delisting. Colorado Law Review, 91, 28.
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  The Endangered Species Act (ESA) is among the strongest biodiversity protection laws anywhere in the world. Its animating principle is that we, as a society, should do whatever it takes to prevent the extinction of the plants and animals that share our planet — a moral intuition shared by most Americans. As preventative medicine, the ESA has been a wild success. A recent study found that less than 1 percent of the 1,747 species listed as threatened or endangered have gone extinct. So far, the Act has proven less effective at rehabilitation. Only fifty-four species have been delisted because of recovery, although that number may increase as recovery efforts mature.Despite its popularity and effectiveness, vocal critics of the ESA remain, arguing that it places unfair and undue restrictions on development, as well as other economic activities, and that the dearth of delistings reveals its inability to achieve its objectives. The U.S. Fish and Wildlife Service (FWS), which administers the ESA for terrestrial species, is no stranger to the controversy engendered by the Act. The agency has demonstrated a capacity to innovate in response, albeit sometimes only after coaxing and encouragement from political leadership. Under the leadership of Secretary Bruce Babbitt, for example, the FWS developed new approaches to facilitate conservation of unlisted but declining species and to enable economic interests to obtain discrete, specific, and predictable legal obligations.This Article proposes a new regulatory reform effort, specifically aimed at the delisting process. Delisting has historically been viewed as binary in nature: either federal protection is removed altogether or it remains in force. This Article recommends contingent delisting as a third option that, in appropriate circumstances, may allow the FWS to accommodate both wildlife conservation and economic interests. Contingent delisting would render a listing dormant — rather than extinguished — and subject to restoration if certain foreseeable events materialize that signal renewed danger to a species’ viability. Deploying this tool would withdraw ESA jurisdiction over a species, thereby allowing local and state governments to assume responsibility for conservation and lifting restrictions placed on property owners. At the same time, contingent delisting would provide for rapid and predictable return of federal protection, thereby alleviating concerns that a species’ recovery might falter once the protections of the ESA have lifted.
• Pidot, J. R. (2019). Environmental Nihilism. Arizona Journal of Environmental Law & Policy, 10(1), 26.
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  Information is the lifeblood of environmental law. It is a prerequisite for standard setting, permitting, and enforcement; without information, these and other components of environmental law remain dormant and ineffective. This essay tentatively diagnoses a new, subversive approach to controlling environmental law — “environmental nihilism” — that seeks to manipulate substantive environmental law by suppressing or manipulating information.Environmental nihilism may become an increasingly common component of disputes over environmental law. Environmental protection remains popular with the American public. Technological changes increasingly enable the public to generate vast quantities of environmental information, which will often trigger specific regulatory consequences. Moreover, administrative law principles constrain the ability of agencies to change policies without engaging the body of information before the agency. Information may, therefore, increasingly lie in the crosshairs of those opposed to federal environmental regulation.Environmental nihilism is not currently a dominant component of American politics. Its extreme forms have yet to materialize. Yet, this essay identifies laws, regulations, and other government actions that obstruct the generation of information, or constrain the government’s ability to use information for regulatory purposes, that appear consistent with environmental nihilism. These examples are of sufficient number and variety to suggest that environmental nihilism is something to be taken seriously. The stakes are high. Where legal rules block the ability of private parties to obtain information, they cannot call public attention to issues of concern, initiate citizen suits against violators, or petition the federal government for relief. Where information lies beyond the purview of government, people suffer, ecological systems deteriorate, and polluters evade legal obligations.

Others

• Pidot, J. R. (2019, August). Understanding the legal decision blocking the Rosemont Mine. Arizona Public Media. https://news.azpm.org/p/news-features/2019/8/20/156855-exploring-the-legal-framework-behind-blocking-the-rosemont-mine/
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  I was quoted in a story for AZPM
• Pidot, J. R. (2020, April). The Supreme Court Rejects a Narrow Reading of the Clean Water Act. ACSblog.
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  I wrote a post for the blog of the American Constitution Society addressing a Supreme Court decision
• Pidot, J. R. (2020, February). Ariz. Bill would undercut endangered species protections. Greenwire.
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  I was quoted in a Greenwire story
• Pidot, J. R. (2020, July). 'Blow up in their face.' Trump NEPA rule faces legal assault. EnergyWire. https://www.eenews.net/energywire/2020/07/16/stories/1063571573
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  I am quoted in a story in ClimateWire
• Pidot, J. R. (2020, June). Conservative group keeps fighting—even against Trump. Greenwire.
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  I was quoted in a Greenwire story
• Pidot, J. R. (2020, March). Supreme Court to Review Endangered Species, FOIA case. Bloomberg Environment & Energy Report.
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  I was quoted in a bloomberg article
• Pidot, J. R. (2020, May). Appointments signal political shift for in-house judges. Greenwire.
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  I was quoted in a Greenwire story
• Pidot, J. R. (2019, December). Proposed Clean Water Act changes will mean uncertainty, loss of protections for Arizona waterways. Arizona Public Media.
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  I was quoted in an AZPM story