Law Commons^™

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

The United States Court of Appeals for the Eleventh Circuit decided cases in 2008 that addressed the scope of agency discretion in several contexts. In an issue of first impression under the Clean Air Act (CAA), the court held that the Environmental Protection Agency (EPA) properly exercised its discretion in not objecting to the issuance of an operating permit to a power company that the agency had earlier formally accused of violating the CAA. In another case, the court held that the Federal Emergency Management Agency had the discretion to protect endangered species while administering the National Flood Insurance Act …

Slides: Protecting Biodiversity Through Ecosystem Services, Barton "Buzz" Thompson

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Barton “Buzz” Thompson, Perry L. McCarty Director, Woods Institute for the Environment, Stanford University Law School

14 slides

Slides: Energy Production And The West's Wild Places, Amy Mall

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Amy Mall, Senior Policy Analyst, Natural Resources Defense Council

28 slides

Supply, Demand, And Consequences: The Impact Of Information Flow On Individual Permitting Decisions Under Section 404 Of The Clean Water Act, Alyson C. Flournoy

UF Law Faculty Publications

This paper focuses on a public trust resource -- wetlands -- and examines an issue that has been studied primarily with reference to health-based pollution-control statutes. This paper assesses whether information gaps create an obstacle to successful regulation under section 404 of the Clean Water Act (CWA or "the Act") as it applies to discharges of dredged and fill material in wetlands. It focuses on how section 404 and the regulations governing permitting determine information demands, information supply, and the legal consequences of a gap between supply and demand. The goal of this inquiry into the demand/supply/consequences scheme is to …

In Re Annandale And The Disconnections Between Minnesota And Federal Agency Deference Doctrine, Mehmet K. Konar-Steenberg

Faculty Scholarship

This article explores each of these differences between Annandale’s view of deference and comparable federal authority. Part II begins the discussion with an explanation of the somewhat complicated legal and factual background that gave rise to Annandale’s unusually thorny agency deference issues. This section includes an extended discussion of the Annandale administrative record and the reasoning of the Minnesota Court of Appeals and Minnesota Supreme Court. Part III then critically analyzes the Annandale court’s claims to have acted consistently with federal agency deference case law in each of the three areas discussed above. Part IV concludes with some post-Annandale developments …

Some Preliminary Thoughts On Contrasts And Convergence In Environmental And Natural Resources Law, Karin P. Sheldon

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

16 pages.

Includes bibliographical references

Agenda: The Future Of Federal Wetlands Regulation After Rapanos, University Of Colorado Boulder. Natural Resources Law Center

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Hot-Topic Discussion held at Brownstein Hyatt Farber Schreck in Denver, Colorado on May 10, 2007 from 12:00 p.m. to 1:15 p.m.

Speaker: Mark Squillace, Director of the Natural Resources Law Center, University of Colorado School of Law.

Commentators: Wayne Forman and Michelle Kales, attorneys, Brownstein Hyatt Farber Schreck

"Rapanos v. United States, 547 U.S. 715 (2006), was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel Alito. The Supreme Court …

Slides: The Future Of Federal Wetlands Regulation, Mark Squillace

The Future of Federal Wetlands Regulation After Rapanos (May 10)

Presenter: Professor Mark Squillace, Director, Natural Resources Law Center, University of Colorado School of Law

35 slides

Environmental Law In The "New" Supreme Court, Robert Abrams

Journal Publications

In the 2006 term the United States Supreme Court issued plenary decisions in four environmental cases. As is usually the case, all four environmental cases that reached the Supreme Court presented nuanced questions of statutory interpretation, most of which were intertwined with administrative law issues. The decisions this term are of unusual importance, as all have significant aspects, either practical, precedential, or attitudinal. Additionally, two of the cases exhibit the 5-4 cleavage, so common in this term's decisions, in which Justice Kennedy is the outcome-determinative swing voter. On unusual occasions there are environmental cases decided by the Supreme Court that …

Implementing Rapanos - Will Justice Kennedy's Significant Nexus Test Provide A Workable Standard For Lower Courts, Regulators And Developers?, Bradford Mank

Faculty Articles and Other Publications

In 2001, the Supreme Court in SWANCC v. U.S. Army Corps of Engineers held that the Corps lacked authority under the 1972 Clean Water Act to regulate wetlands isolated from navigable waters. The Court held that the CWA's jurisdiction is limited to non-navigable waters that have a significant nexus to navigable waters. SWANCC did not address the Corps' regulation of wetlands near non-navigable tributaries. The courts of appeals are divided over if the Corps may regulate tributary wetlands. Mank, The Murky Future of the Clean Water Act After SWANCC, 30 ECOLOGY LAW QUARTERLY 811-891 (2003).

In 2006, the Supreme Court …

Administering The Clean Water Act: Do Regulators Have "Bigger Fish To Fry" When It Comes To Addressing The Practice Of Chumming On The Chesapeake Bay?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The Chesapeake Bay is one of the country's most productive estuaries. However, for decades the health of the Bay has been declining due in large part to nutrification. Excessive nutrients encourage algal blooms, which lower dissolved oxygen and increase turbidity in the Bay's waters. More than 40% of the Bay's main stern is now dead largely as a result of this problem. The practice of chumming, the discarding of baitfish, usually menhaden, over the sides of fishing boats to attract game fish like striped bass, is contributing to the Bay's nutrification problem because the decomposing chum raises the waters biological …

Rapanos, Carabell, And The Isolated Man, Joel B. Eisen

Law Faculty Publications

We gather yet again this year at the University of Richmond to discuss the deplorable state of the Chesapeake Bay and the concerted effort needed to bring it back from the brink of death. The state of the Bay seems not much better than it did eleven years ago, when a group of wise souls who cared deeply about the Bay assembled at this law school to revisit the Kepone incident and call for more action to stem pollution in the Bay. To no one's surprise, unfortunately, that august group assembled in our Moot Court Room did not solve the …

On Integrity: Some Considerations For Water Law, Christine A. Klein

UF Law Faculty Publications

Expanding upon the aspects of integrity protected under the Clean Water Act, this Article will explore the relevance to water law of chemical,physical, ecosystem, social, and ethical integrity. Just as the Clean Water Act intended to prevent unacceptable "perturbations" of ecosystems, so also this Article will consider the extent to which the law itself may work an unacceptable perturbation of fundamental hydrologic and social principles. In many instances, water policy compartmentalizes the law in ways that have little to do with hydrologic reality and in ways that are antithetical to wholeness and integrity. Examples include the legal bifurcation of surface …

Agenda: Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

1 v. (various pagings) : ill., maps ; 28 cm

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Defining "Addition" Of A Pollutant Into Navigable Waters From A Point Source Under The Clean Water Act: The Questions Answered — And Those Not Answered — By South Florida Water Management District V. Miccosukee Tribe Of Indians, Steven A.G. Davison

All Faculty Scholarship

No abstract provided.

Treatment As Tribe, Treatment As State: The Penobscot Indians And The Clean Water Act, William H. Rodgers, Jr.

Articles

No abstract provided.

Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy

UF Law Faculty Publications

This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years.

Law, Policy, And The Clean Water Act: The Courts, The Bush Administration, And The Statute's Uncertain Reach, Michael P. Healy

Law Faculty Scholarly Articles

The development of the jurisdictional reach of the Clean Water Act ("CWA") reflects a hybrid of the judicial determination of the clear legal requirements of the CWA and the exercise of discretionary agency policymaking in the form of legal requirements that are binding on both agency and regulated party. This distinction in the content of administrative law was not altogether clear prior to the Supreme Court's 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. Today, the distinction is fundamental to administrative law and important to assessing the evolution of the scope of CWA jurisdictional waters because the …

Enforcing The Clean Water Act In The Twenty-First Century: Harnessing The Power Of The Public Spotlight, Clifford Rechtschaffen

Publications

Thirty years after the passage of the Clean Water Act, how can we strengthen enforcement of the CWA, increase rates of compliance, and move closer to achieving the statute's un-derlying objectives? This Article argues that legislators and policymakers looking for solutions in this resource-strapped era should harness the power of the public spotlight to enhance enforcement efforts. Part I describes the strong Congressional and public support for vigorous enforcement of the statute. Part II discusses how successfully the NPDES program currently is being implemented by the states and the EPA. The record of performance shows that there are numerous deficiencies …

Aquaculture And Pollutants Under The Clean Water Act: A Case For Regulation, Sean M. Helle

Publications

No abstract provided.

Standing To Sue In Citizen Suits Against Air And Water Polluters Under Friends Of The Earth, Inc. V. Laidlaw Environmental Services (Toc), Inc., Steven A.G. Davison

All Faculty Scholarship

No abstract provided.

The Effect Of The Supreme Court's Eleventh Amendment Jurisprudence On Environmental Citizen Suits: Gotcha!, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The current Supreme Court has substantially expanded the scope of protection from lawsuits accorded to states by the Eleventh Amendment and narrowed the exceptions to its application. As a result, many people are finding they are unable to vindicate federal rights in any court when the defendant is a state or a state agency. The most recent example of this is the Court's decision in South Carolina State Ports Authority v. Federal Maritime Commission, in which the Court extended the reach of the Eleventh Amendment to private administrative enforcement actions against states, thus forsaking completely any connection to the …

Pre-Conference Statement For The Session On “Integrating Environmental, Cultural And Other Values In Water Law And Policy”, David H. Getches, Sarah B. Van De Wetering

Allocating and Managing Water for a Sustainable Future: Lessons from Around the World (Summer Conference, June 11-14)

39 pages.

Contains references (pages 36-39).

Keynote Address, Rebecca Watson

Coalbed Methane Development in the Intermountain West (April 4-5)

6 pages.

Federal, State, And Local Regulatory Framework For Permitting Of Cbm Development, Kate Zimmerman

Coalbed Methane Development in the Intermountain West (April 4-5)

17 pages.

Contains 5 pages of endnotes.

Concluding Comments, Michael Reisner

Coalbed Methane Development in the Intermountain West (April 4-5)

2 pages.

Protecting Intrastate Threatened Species: Does The Endangered Species Act Encroach On Traditional State Authority And Exceed The Outer Limits Of The Commerce Clause, Bradford Mank

Faculty Articles and Other Publications

After the Supreme Court decided Lopez, a number of commentators speculated about its impact on the Endangered Species Act. This Article reexamines the issue in light of Morrison and SWANCC. Part V demonstrates that, even after Lopez, Morrison, and SWANCC, the Commerce Clause reaches federal regulation of intrastate endangered or threatened species because conservation of such species has traditionally been a shared federal and state function that recognizes the legitimacy of federal regulation whenever the need for preservation is great and states have failed to address important conservation issues. Additionally, Part V shows federal regulation of endangered or threatened species …

Environmental Damages And Crimes, Jeffry S. Wade

UF Law Faculty Publications

In the effort to achieve environmental goals, policymakers have a number of tools available, including environmental and urban planning, regulatory and permitting programs, various types of incentives, purchasing programs, monitoring requirements, and the establishment of administrative, civil, and criminal sanctions. The applicability and effectiveness of these tools are of course dependent on the particular cultural, economic, and governmental context.

Though criminal enforcement of environmental laws is sometimes perceived as a reactive measure, representing the failure of other approaches, it can serve an important function in deterring environmental abuses; promoting respect for environmental policies; sanctioning persons who violate the law; and …

The Birth, Death, And Rebirth Of The World Trade Center And The Fate Of New York, Michael B. Gerrard

Faculty Scholarship

The year in the title has finally arrived, and in Stanley Kubrick's classic film 2001: A Space Odyssey, the appearance of large monoliths marks important transitions in human civilization. In New York City, the construction, destruction and possible reconstruction of the twin monoliths of the World Trade Center also mark historical transitions. Among the things transformed with each event is our relationship to the physical environment.