Kirsten H Engel

Interests

No activities entered.

Courses

Scholarly Contributions

Books

• Burdon, P., Bosselmann, K., & Engel, K. H. (2019).

  The Crisis in Global Ethics and the Future of Global Governance

  . Edward Elgar Publishing. doi:10.4337/9781786430878
• Engel, K. H. (2016). ENVIRONMENTAL LAW: A CONCEPTUAL AND PRAGMATIC APPROACH, 3d edition. ASPEN PUBLISHERS.
• Engel, K. H. (2016). Teaching Manual to ENVIRONMENTAL LAW: A CONCEPTUAL AND PRAGMATIC APPROACH, 3d edition. Aspen Publishers.
• D'amato, A., & Engel, K. H. (1996).

  International environmental law anthology

  . Andersen Pub..

Chapters

• Engel, K. H., Peter, B., & Klaus, B. (2019). Essays collection. In The Crisis in Global Ethics and the Future of Global Governance Fulfilling the Promise of the Earth Charter. Edward Elgar Press.
  More info

  I am a co-editor of a collection of essays in a book recently published by Edward Elgar Press, "The Crisis in Global Ethics and the Future of Global Governance Fulfilling the Promise of the Earth Charter," 2019. ISBN 978 1 78643 086 1 (cased) ISBN 978 1 78643 087 8 (eBook).My co-authors are Peter Burdon of the Adelaide Law School, University of Adelaide, Australia and Klaus Bosselmann Professor of Law and Director, New Zealand Centre for Environmental Law, University of Auckland, New Zealand.The book examines the role of the past and potential future role of the Earth Charter in addressing global environmental crises of the 21st century such as global climate change.
• Engel, K. H. (2015). The Enigma of State Climate Change Innovation. In The Law and Policy of Environmental Federalism: A Comparative Analysis. Edward Elgar Publishing.
  More info

  Abstract:Starting in the 1990s, states began filling the gap left by the federal government’s failure to enact climate change legislation. Policies adopted by states, such as regional greenhouse gas cap and trade regimes and renewable portfolio standards, have been lauded as demonstrations of the continuing ingenuity of the states as “laboratories of democracy,” devising new and innovative solutions to the global problem of climate change. This view is in tension with the predictions of well-respected economists that states will innovate at sub-optimal levels due to the risk-averse nature of politicians and the ability of one state to free-ride off the innovative ideas of other states. This chapter concludes the truth lies somewhere in the middle. While state governments are the original source of only a few of the most touted climate policy initiatives, they are frequently the first to adapt a policy previously adopted only on the national level. As opposed to “policy innovators,” state and local governments might more accurately be described as “scale innovators.” Given the overarching necessity of cutting back on greenhouse gas emissions, policy adoption on multiple scales is arguably of greater social value than developing new and original policy tools.
• Engel, K. H. (2016). Climate Change Federalism. In ENCYCLOPEDIA OF ENVIRONMENTAL LAW: CLIMATE CHANGE. Edward Elgar Publishing.
• Engel, K. H. (2016). Environmental Federalism: A View from the United States. In ENCYCLOPEDIA OF ENVIRONMENTAL LAW: ENVIRONMENTAL DECISIONMAKING. Edward Elgar Publishing.
• Engel, K. H. (2015).

  Environmental Federalism: A View from the United States

  . In Encyclopedia of Environmental Law: Environmental Decisionmaking (Robert Glicksman et al. eds., 2015). Edward Elgar Publishing Limited. doi:10.4337/9781783478408.II.6
  More info

  Since Congress exploded onto the scene in the 1970s with several major pieces of environmental legislation, federalism has been a fixture of environmental policy debates. Prior to this time, environmental regulation had been left largely to state and local control. Since then, scholars and policymakers have debated the justifications for a strong federal role and the manner that authority should be allocated between states and the federal government. Scholars have divided more or less into two camps, those that support allocations designed to achieve efficiency according to models of perfect competition, and those identifying benefits of a more dynamic and overlapping relationship between state and federal authorities. Interestingly, the actual practice of environmental federalism, as seen in the major federal environmental statutes, has tended not to follow either model exactly. Recent indications, however, signal a trend toward the dynamic model. A case in point is the duplication, overlap and incorporation of state-­level climate change policy into federal law.
• Miller, M. L., & Engel, K. H. (2009). State Governance: Leadership on Climate Change. In Agenda for a Sustainable America(pp 441-459). Washington, DC: ELI Press.
  More info

  This book is a comprehensive assessment of U.S. progress toward sustainable development and a roadmap of necessary next steps toward achieving a sustainable America. Packed with facts, figures, and the well-informed opinions of thirty-two experts, it provides an illuminating snapshot of sustainability in the United States today. And each of the contributors suggests where we need to go next, recommending three to five specific actions that we should take during the next five to ten years. It thus offers a comprehensive agenda that citizens, corporations, nongovernmental organizations, and government leaders and policymakers can use to make decisions today and to plan for the future.
• Adelman, D. E., & Engel, K. H. (2008).

  Adaptive environmental federalism

  . In Minnesota Law Review, 2008. Cambridge University Press. doi:10.1017/CBO9780511552007.014

Journals/Publications

• Engel, K. H. (2021). Don’t legislate conspiracy theories, pass federal voting rights act. Arizona Daily Star (Guest Opinion), 2.
• Engel, K. H. (2020). CLIMATE FEDERALISM IN THE TIME OF COVID-19: CAN THE STATES “SAVE” AMERICAN CLIMATE POLICY?. Northern Kentucky Law Review, 47, 115-137.
• Engel, K., Loiseleur, E., & Drilhon, E. (2020). Arizona’s Groundwater Management Act at 40: Tackling Unfinished Business. Arizona Journal of Environmental Law and Policy, 10, 29.
  More info

  Abstract:Forty years ago, motivated by dropping water tables and land subsidence,Arizona lawmakers enacted the 1980 Groundwater Management Act. At the time,the Act was hailed as the most far-reaching state legislation to control rampantgroundwater depletion ever enacted. Despite the rhetoric, however, the Act neverdealt with Arizona’s groundwater usage in a comprehensive manner and today itsshortcomings are starkly apparent. The Act addressed the groundwater crisis onlyin the State’s most populous areas, leaving the remainder of the State to theunregulated Wild West of groundwater use, a veritable “tragedy of the commons”perpetuated by the lax “reasonable use” doctrine. Furthermore, it left untouchedin the law the hydrologic fallacy that ground and surface waters are distinct. Theresult is as predictable as it is tragic; plunging water tables in many of Arizona’srural areas are forcing homeowners and businesses to either drill deeper wells or relocate. Riparian areas are being lost, and with them, Arizona’s unique desertecosystems.This Article argues that Arizona lawmakers must return to the drafting table tocomplete the work they started in 1980—the creation of a groundwatermanagement code, based in science, that will ensure the equitable andsustainable use of groundwater across the entire State for current and futuregenerations. It suggests two options for such future legislation, one embodying aproperty rights approach and the other a government regulation approach.Under the former, legislation would establish the framework for a groundwatermarket according to which existing and future groundwater users could purchaseand trade the right to pump groundwater. Under the latter, Arizona could balancethe powerful state and local interests in groundwater management through anexpanded Act that follows “cooperative localism,” a term coined in this Article torefer to a division of governing authority between state and local government inwhich local governments plan and implement state-imposed groundwaterprotection requirements. Cooperative localism would provide for local planningin pursuit of a statewide safe yield goal implemented on a basin-by-basin basis.Today’s groundwater crisis comes at a time when scientists warn that climatechange will likely exacerbate current drought conditions, thus placing additionalpressure on Arizona’s declining groundwater resources. It also comes at a timewhen Arizona can expect future reductions in Colorado River supplies as a resultof the recently enacted multistate Drought Contingency Plan.
• Engel, K. H. (2019). "Arizona lags the nation in criminal justice reform". Arizona Capitol Times, 2.
  More info

  (guest opinion)
• Engel, K. H. (2019). "For criminal justice reform, it is 'maybe next year' again". Arizona Daily Star, 2.
  More info

  (Guest opinion)
• Engel, K. H. (2015). Climate Change Regulation and the Emerging New Cooperative Federalism. Publius: The Journal of Federalism, Annual Review Issue.
  More info

  AbstractThe Obama Administration’s EPA created a stir when it recently proposed widely varying greenhouse gas emission reduction targets for each state’s electricity sector under the Clean Air Act. This paper examines the bases for these varying targets, concluding that they represent a new approach to the traditional cooperative federalism approach that has characterized the executive branch’s implementation of federal environmental laws. Under this new approach, EPA adopts an instrumentalist approach whereby the scope of a state’s federal pollution-reduction obligation is a function of the state’s individual capacity to achieve reductions rather than its contribution to the overall environmental problem. While strong on economic and likely political feasibility, the widely varying emissions targets raise questions regarding the fairness of the federal allocation of the collective national pollution reduction burden needed to attain national environmental goals.
• Engel, K. H. (2016).

   

  Democratic Environmental Experimentalism
  . UCLA Journal of Environmental Law and Policy. doi:10.2139/ssrn.2710760
• Engel, K. H. (2017). Democratic Environmental Experimentalism. Journal Issue: UCLA Journal of Environmental Law and Policy, 35(1), 35(1), pgs. 57-82.
• Engel, K. H. (2013). Perverse incentives: The case of wildfire smoke regulation. Ecology Law Quarterly, 40(3), 623-672.
  More info

  Abstract: Wildfire is on the rise. The United States is witnessing a spectacular increase in acres lost to catastrophic wildfires, a phenomenon fed by the generally hotter and dryer conditions associated with climate change. In addition to losses in lives, property, and natural resources, wildfires contribute thousands of tons of air pollution each year. Ironically, one of the most effective tools to reduce the incidence and severity of unplanned wildfires is fire. Prescribed, or controlled, burning reduces the buildup of vegetation resulting from years of wildfire-suppression policy. At present, the number of acres subject to prescribed burns falls far short of the optimal number needed to restore natural ecosystems and reduce damages from unplanned wildfires. Air-pollution law and policy is an important factor contributing to the under-provision of prescribed fire that has so far escaped in-depth treatment in the law and policy literature. After setting forth the relevant air quality framework, this Article argues that decisions regarding planned wildfire are marred by an anachronistic and inaccurate distinction between "natural" and "anthropogenic" fire. Rationalizing that unplanned wildfires are "natural," the federal government excludes pollutants from such fires from air quality compliance calculations at the same time it encourages states to vigorously control pollutants from "anthropogenic," prescribed fires. The result contributes to an undervaluation of necessary, planned wildfire. Wildfire air pollution policy is also hindered by governance structures that place air quality and resource agencies at odds with each other, and by state nuisance authorities that enable narrow local interests to shut down prescribed fire, all of which trump the broader public interest in reduced wildfire risk and healthier forests. This Article suggests several solutions to remove these distortions, including adopting a default rule whereby all wildfire smoke, of whatever origin, "counts" for purposes of air quality compliance. Together with adopting mechanisms to require air pollution and resource agencies to both participate in planned burning decisions and de-emphasize the influence of nuisance standards, this "smoke is smoke" rule will ensure that the air pollution policy better reflects the true costs and benefits of prescribed fire. Copyright © 2013 Regents of the University of California.
• Engel, K., & Overpeck, J. (2013).

  Adaptation and the Courtroom: Judging Climate Science

  . Michigan Journal of Gender & Law, 1. doi:10.36641/mjeal.3.1.adaptation
• Engel, K. H., & Reeves, A. M. (2012).

  When ‘Smoke Isn’t Smoke’: Missteps in Air Quality Regulation of Wildfire Smoke

  . Arizona Legal Studies Discussion Paper. doi:10.4324/9780203153048-17
  More info

  Decades of fire suppression have taken their toll on America’s forests. One legacy is severe wildfires. Prescribed burning is considered an effective tool in reducing the incidence of naturally-ignited wildfires and maintaining ecosystem health. Nevertheless, experts estimate that levels of prescribed burning in the U.S. are below levels that would be considered optimal for reducing wildfire damage. This paper examines the impact of the Clean Air Act regulatory framework upon wildfire smoke, concluding that distinctions between smoke originating from unplanned wildfires and prescribed burns results in the underutilization of prescribed fire. In order to ensure that the adverse health effects of wildfire smoke is taken into account in air quality planning, and not just that emanating from prescribed fire, we recommend eliminating regulatory exemptions for smoke from wildfires for air quality compliance purposes.
• Brickey, C., Engel, K. H., Jacobs, K. L., Luecke, M., Matter, J., Miller, M. L., Overpeck, J. T., & Udall, B. (2010).

  How to Take Climate Change into Account: A Guidance Document for Adjudicating Water Disputes

  . The Environmental Law Reporter, 40.
  More info

  This report is intended for use by federal, state, and administrative judges who are confronted with a legal dispute involving a water resource that is alleged to be impacted by climate change . It may be useful as well for attorneys litigating or experts working on water adjudications . The purpose of this document is to summarize the manner in which climate change may impact rights and frameworks established under state and federal law concerning water resources and to anticipate the issues that water-related climate claims will pose to legal decisionmakers . This report arose out of the November 11-12, 2009, workshop, “Water Law and Climate Change,” held in Reno, Nevada, and sponsored by the National Judicial College and Dividing the Waters, a nonprofit organization of federal and state water adjudicators . No judge who attended the workshop has reviewed or approved of the content of this document. This document does not reflect the personal opinion of any individual judge . Water management and the resolution of water disputes have long relied on a simple and fundamental assumption: the past is a way to understand the present and to predict the future . Thus, for example, water allocation decisions—whether made by states in negotiating an interstate compact or by courts quantifying reserved rights—were made based on the historic record of water supply availability . Climate change undermines the basic premise in water disputes that the past is a fair predictor of the future . Climate change is already affecting some hydrological regimes, and, in the future, such effects will increase .1 Decisions that depend on projections of what may occur in the future present courts with a greater degree of uncertainty than they faced in the past . Climate change issues are being raised and increasingly considered in water litigation and in environmental policy more generally . This document notes the escalating importance for water management of the “climate change/hydrologic cycle” link and sketches implications for courts . The general problem climate change presents to courts in water disputes is how to deal with decisionmaking in light of greater uncertainty . The report surveys several tools judges can use to understand the new science of climate change, and some of the options for resolving water disputes in ways that reflect a more rapidly changing and uncertain world . Many courts are already deciding issues related to climate change . In fact, climate change has been considered in dozens of cases handed down by federal and state courts . Several of the most significant cases thus far involve actions to compel federal agencies to regulate or consider the emissions of greenhouse gas (GHG) emissions under existing environmental laws . Of these cases, Massachusetts v. EPA2 is the most important . A second important line of cases seeks to compel
• Engel, K. H. (2009). Whither subnational climate change initiatives in the wake of federal climate legislation?. Publius, 39(3), 432-454.
  More info

  Abstract: The imminent prospect of federal climate change legislation raises two questions: will state and local governments continue to press forward with climate change initiatives in the wake of congressional action and, if so, what is the likelihood these initiatives will survive the threat of federal preemption The article concludes that state and local action on climate change is motivated only in part by the federal governments failure to adopt a national climate regulatory program and hence is likely to continue and perhaps even intensify. While a cap and trade program is likely to preempt state regulation of emissions allowances, it is unlikely to preempt many of the climate initiatives being pursued. However, the effect upon existing regional cap and trade regimes remains the biggest question mark.
• Adelman, D. E., & Engel, K. H. (2008). Adaptive federalism: The case against reallocating environmental regulatory authority. Minnesota Law Review, 92(6), 1796-1850.
• Engel, K. H. (2007). Harmonizing regulatory and litigation approaches to climate change mitigation: Incorporating tradable emissions offsets into common law remedies. University of Pennsylvania Law Review, 155(6), 1563-1603.
• Engel, K. (2006). State and local climate change initiatives: What is motivating state and local governments to address a global problem and what does this say about federalism and environmental law?. Urban Lawyer, 38(4), 1015-1029.
  More info

  Abstract: State and local initiatives to reduce greenhouse gas emissions constitute an unusual outpouring of activity on a global environmental issue in the absence of federal leadership on climate change. Such an activity carries with it its own logic and its own set of opportunities for the development of environmental law. Overall, state and local actions are fostering regional coalitions and agreements on climate change, bolstering the degree to which localities identify with other states as members of a single region and strengthening the powers of such regional arrangements.
• Engel, K. H., & Saleska, S. R. (2005).

  Subglobal Regulation of the Global Commons: The Case of Climate Change

  . Ecology Law Quarterly, 32(2), 183-233. doi:10.15779/z38kv8p
  More info

  In this Article, the authors challenge the conventional wisdom in the legal, economics, and policy literature that unilateral (as opposed to collective) action by individual countries to restrain despoliation of the global commons is presumptively irrational. The conventional view flows from Garrett Hardin 's classic "Tragedy of the Commons " analysis, in which commons preservation, though collectively desirable, is economically irrational when undertaken by individuals, hence the tragedy. Motivated by the unexpected actions of many individual nations and states to address climate change (a classic global commons problem) even in the absence of an unambiguous global framework, the authors show that the market imperfections that characterize some global commons problems, including those of climate change, can diverge from those underpinning the standard "Tragedy of the Commons. " The authors argue that this divergence makes room for signiftcant rational unilateral action towards commons preservation, and that this has been underappreciated by many scholars who instinctively disparage unilateral action. In place of the conventional wisdom, the authors suggest that short of the ideal "full glass" of optimal collective action, there exists a "glass half full" of suboptimal unilateral action by larger subglobal governments that is better than no regulation (and hence no benefits) at all, and, indeed, the evidence shows that some larger subglobal governments, the United States in particular, should actually be doing more to address climate change. Furthermore, action
• Engel, K. H. (1999). The dormant commerce clause threat to market-based environmental regulation: The case of electricity deregulation. Ecology Law Quarterly, 26(2), 243-347.
• Engel, K. H., & Saleska, S. R. (1998).

  Facts Are Stubborn Things: An Empirical Reality Check in the Theoretical Debate over the Race-To-The-Bottom in State Environmental Standard-Setting

  . Cornell Journal of Law and Public Policy, 8(1), 55-88.
• Engel, K. H. (1997). State Environmental Standard-Setting: Is There a "Race" and Is It "To the Bottom"?. Hastings Law Journal, 48(2), 271-.
• Engel, K. H. (1995).

  Reconsidering the National Market in Solid Waste: Trade-Offs in Equity, Efficiency, Environmental Protection, and State Autonomy

  . North Carolina Law Review, 73(4).
• D'amato, A., & Engel, K. H. (1988).

  State Responsibility for The Exportation Of Nuclear Power Technology

  . Virginia Law Review, 74(6), 1011. doi:10.2307/1073287
  More info

  Should nations that export nuclear power plants to developing countries be potentially liable to the people of those countries for catastrophic accidents? Risk of accident can be reduced if international law compels upgrading of safety design and construction of nuclear plants. Both the international law of state responsibility and an international regulatory agency have roles to play. Tags: Nuclear accidents, State responsibility, Territorial principle, Denial of justice, Philippine power plant at Na-

Presentations

• Engel, K. H. (2014, August/Summer). Warring Federalism Constructs under the Clean Air Act. Federalism: Sec 01: Amer. Political Science Assn. Washington, D.C.: The American Political Science Assn Annual Meeting.
• Engel, K. H. (2014, February/Spring). Does the Clean Air Act prevent effective wildland fire management?. University of Arizona School of Natural Resources and Environment Seminar Series. University of Arizona: School of Natural Resources and the Environment.
• Engel, K. H. (2014, September/Fall). Cooperative Federalism and Climate Change: Rethinking Traditional State and Federal Roles. Speaker Series, Center for Local, State and Urban Policy Gerald R. Ford School of Public Policy, Univ. of Michigan. Ann Arbor, Michigan: Center for Local, State and Urban Policy Gerald R. Ford School of Public Policy, University of Michigan.

Creative Productions

• Engel, K. H. (2018. Various media appearances.
  More info

  I appeared in multiple print, audio and video media appearances related to my role as a state legislator. I also published several opinion pieces over the course of the year on topics related to legislation, mostly criminal justice reform in Arizona. These pieces appeared in the Arizona Daily Star, the Arizona Republic and the Arizona Mirror.
• Engel, K. H., & Bradley, D. (2018. We Can, Must Fund Teacher Raises with Permanent Revenue Sources. Arizona Daily Star.
• Engel, K. H. (2016. Brief: Environmental Defense Fund v EPA Clean Power Plan. Washington DC: Environmental Defense Fund.
  More info

  At the request of the Environmental Defense Fund, I worked on assembling a legal team to draft a brief on behalf of climate scientists in a case in the D.C. Circuit challenging the EPA Clean Power Plan.
• Engel, K. H., & Kaswan, A. (2016. Issue Paper. Issue Briefs. Washing DC: Center for Progressive Reform.
  More info

  I am currently collaborating with Alice Kaswan, a professor at the University of San Francisco, on an “Issue Paper” on the manner in which EPA’s incorporates regional differences into its methodology for calculating states’ carbon reduction targets. The paper will be published as part of a series by the Center for Progressive Reform in Washington, D.C. CPR is a non-profit organization composed primarily of environmental law professors. CPR works with the professors to make their research relevant to policymakers. I am a CPR Scholar and regularly collaborate with other scholars to produce Issue Briefs that are shared with the staffs of members of Congress and the media.
• Engel, K. H., & Kaswan, A. (2016. Uniformity under the Clean Power Plan: Enhancing Achievability at the Cost of Stringency. Center for Progressive Reform Issue BriefCenter for Progressive Reform.
  More info

  Alice Kaswan and Kirsten Engel, Uniformity under the Clean Power Plan: Enhancing Achievability at the Cost of Stringency (work in progress; currently collecting reviews from peers; will be the basis for a CPR Issue Brief and later, a law review article).
• Engel, K. H. (2015. The Merits of the Clean Power Plan Challenge: It all Depends on Chevron. CPRBlogCenter for Progressive Reform (CPR). http://www.progressivereform.org/CPRBlog.cfm?fkScholar=65
• Engel, K. H. (2015. The Stuff of an 'Extraordinary Writ' or a Hum-drum Administrative Law Case: Reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA. CPRBlogCenter for Progressive Reform. http://www.progressivereform.org/CPRBlog.cfm?idBlog=688E613C-CA5C-1626-5FCE32B0615629E8

Others

• Engel, K. H., & Farber, D. (2018, Spring 2018). Comments - EPA Proposed Revisions to the Clean Power Plan.
  More info

  I collaborated with Professor Dan Farber, of UC Berkeley Law, to file comments on the EPA’s proposed revisions to the Clean Power Plan during the spring 2018. These comments suggested an alternative legal interpretation of the provisions of the Clean Air Act that would authorize the broad scope of the Obama Administration’s regulation. In addition to submitting our comments to the EPA, our comments are the basis for a blog post on the “Legal Planet” blog administered by Prof. Farber and others at UC Berkeley.
• Engel, K. H. (2016, April). Engle Runs for Arizona Legislature. Arizona Daily Wildcat.
  More info

  I was the subject of an Arizona Daily Wildcat profile in April 2016. The topic of the article was my run for the Arizona legislature.