Law Commons^™

Protecting Oregon's Estuaries, Edward J. Sullivan

Ocean and Coastal Law Journal

Estuaries are an invaluable part of a coastal ecosystem where plant and animal species indigenous to fresh and salt waters mix. Since 1971, the United States government has encouraged states to study and protect coastal resources. Oregon is one of those states and has almost 600 kilometers of coast, an area with only about 6% of the state’s population. Oregon also has a statewide planning program, which establishes binding policies, called “goals,” for local governments (cities and counties) to carry out. The constellation of available federal funds, a state and local desire to protect coastal resources, and a mechanism ...

"Over-Hauling" The Law Governing Lobster Fishing, Tyler J. Lauzon

Ocean and Coastal Law Journal

Lobster fishing is one of Maine’s most famous and important industries. In order for the industry to thrive, it is necessary that the lobster stock continue to be bountiful. One way to achieve a bountiful stock of lobster is to place limits on the amount of lobster that can be fished in any given year. The legal world offers a number of ways to achieve this end. Some mechanisms that have been employed in various jurisdictions include minimum and maximum legal sizes, v-notching, and trap limits. Although these laws can be very effective in reducing the number of lobsters ...

Drawing A Line In The Sand: Off-Road Vehicle Use On National Seashores, Kurt C. Peterson

Ocean and Coastal Law Journal

When we look up and down the ocean fronts of America, we find that everywhere they are passing behind the fences of private ownership. The people can no longer get to the ocean. When we have reached the point that a nation of 125 million people cannot set foot upon the thousands of miles of beaches that border the Atlantic and Pacific Oceans, except by permission of those who monopolize the ocean front, then I say it is the prerogative and the duty of the Federal and State Governments to step in and acquire, not a swimming beach here and ...

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution actions ...

An Ecological Theory Of Statutory Interpretation, Nicholas S. Bryner

Idaho Law Review

Canons of construction serve as a set of ground rules that judges rely on in interpreting statutes. Substantive canons of construction, in particular, are principles and presumptions that point judges in a specific policy direction in order to serve underlying public values. Many of these substantive canons share a common justification: judges have developed them to mitigate threats of irreversible harm to vulnerable and underrepresented interests and to incentivize clarity in the legislative process. This Article argues that environmental interests—the interests of present and future generations in maintaining ecological conditions that support life—merit similar protection. Therefore, judges should ...

The Oil & Gas Industry: Failing To Properly Regulate Hydraulic Fracturing & Placing Profits Over Safety, Ellery Gordon

The Journal of Business, Entrepreneurship & the Law

This Note will evaluate the regulations and environmental implications surrounding hydraulic fracturing, or “fracking,” on state, federal, and Indian lands, focusing on the recent and still undecided case of Wyoming v. United States Dep’t of the Interior. Additionally, it will address the regulatory gap in federal regulations governing hydraulic fracturing, the current issues the industry faces, and advocate for a more stringent set of regulations that ought to be applied on a uniform basis throughout the United States. In the aforementioned case, Wyoming, Colorado, North Dakota, Utah, and the Ute Indian Tribe brought suit against the Bureau of Land ...

American Lobster Claws Threatened By Eu Invasive Species Laws:How The Eu Invasive Species Act Applies Non-Uniformly To Aquatic Species., Joseph D. Foltz

Ocean and Coastal Law Journal

In 2014 the European Union enacted the “Prevention and Management of the Introduction and Spread of Invasive Alien Species Act” (Act) as a way to restrict the transportation and consumption of non-native animal and plant species that harmed native animal and plant species. As a result of this Act, thirty-seven species were deemed “invasive alien species” and were placed on a “list of Union concern” which restricted their importation and movement within the EU. Two species on this list include the Virile Crayfish (Orconectes virilis) and the Pond Slider (Trachemys scripta). On February 29, 2016, Sweden (a European Union member ...

Toward Distributive Justice In Offshore Natural Resources Development: Iceland And Norway In The Jan Mayen, Anita L. Parlow

Ocean and Coastal Law Journal

As pressures of globalization and advances in technology accelerate, more and more remote, coastal, and small communities are left financially stranded and disempowered. Many communities located at the historic periphery of global markets and trade routes are, often paradoxically, marginalized from the benefits of globalized trade, even while their more accessible natural resources have moved far closer to the center of global markets. The powerful political institutions of nation states combined with growing transnational businesses are driving a combination of boosts in national economies, explosions in technology, and fewer international restrictions on capital. This three-pronged dynamic is reshaping the structure ...

Race To Extinction: Shark Conservation Under International And European Law And Its Limits, Ilja Richard Pavone

Ocean and Coastal Law Journal

The purpose of this paper is to clarify the existing (global and regional) legal standards on shark conservation from over-exploitation. First, an analysis of the current international legal framework (law of the sea, sustainable fisheries management, wildlife law) applicable to shark protection is provided (Part I). Next the paper explores the evolution of the European Union (EU) policy on shark finning, since the EU − in line with the United States (Shark Conservation Act) − opted for a strict fins-attached policy, or Fins-Naturally Attached (FNA), The new policy eliminated the major pitfall of its previous regulation, based on a fin-to-carcass weight regime ...

Cultivating A Culture Of Environmental And Natural Resources Collaboration In Utah, Danya Rumore

Environmental Dispute Resolution Program

Unhealthy air quality. Growing demands for water in an arid state. Conflicts over public lands and how those lands should be managed. These are just a few environmental and natural resources challenges here in Utah that we hear “keep people up at night.” Such challenges are indeed daunting, and they will not be easily solved. However, in every challenge there is an opportunity. And when it comes to environmental and natural resources challenges, there is a powerful opportunity for people to work together to find mutually beneficial solutions that are, as consensus building guru Larry Susskind puts it, “fair, efficient ...

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Faculty Scholarship

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U ...

Justifying Safety: The Paradox Of Rationality, Sara Gosman

Sara Gosman

United States V. Gila Valley Irrigation District, Ryan L. Hickey

Public Land & Resources Law Review

Attempts to alter water use agreements, especially those spanning back decades or even centuries, elicit intense scrutiny from water rights holders. In United States v. Gila Valley Irrigation Dist., the Ninth Circuit upheld application of a 1935 Decree apportioning water among various regional entities, including two Indian tribes, to bar a mineral company from transferring water rights between properties within the Gila River drainage.

Are Critical Area Buffers Unconstitutional? Demystifying The Doctrine Of Unconstitutional Conditions, Brian T. Hodges

Seattle Journal of Environmental Law

Washington’s cities and counties are increasingly demanding that owners of residential shoreline properties dedicate large, predetermined critical area buffers as a mandatory condition of any new development. Such demands, when imposed without regard to the specifics of the land use proposal, would appear to violate the essential nexus and rough proportionality tests established by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). Early decisions from Washington courts faithfully applied these tests, invalidating open space and buffer dedications. But in a ...

200 Days & Counting: Environmental Law & The Trump Administration, Daniel A. Farber, Eric Biber

Center for Law, Energy & the Environment Publications

August 7, 2017, was Donald Trump’s 201^st day as President of the United States. Eric Biber and Dan Farber marked the occasion with an analysis looking back at the Trump Administration’s impact on environmental law in the United States during its first 200 days and exploring the most likely future developments that we may see in the remaining years of its term. Approaching its subject primarily by channels of government decision-making – legislation, budget, enforcement, executive orders, and state and local action – 200 Days & Counting reviews the Administration’s environmental proposals and offers a prognosis of what may come next.

Acknowledging that there is still significant uncertainty regarding the ultimate impact of the Administration’s environmental policies, the authors conclude that major statutory revisions are unlikely; significant regulatory rollbacks will be slow; federal agency and research budgets may be substantially ...

Statement Of Amanda C. Leiter At The U.S. House Committee On Natural Resources, Subcommittee On Oversight And Investigations Hearing On: Examining Impacts Of Federal Natural Resources Laws Gone Astray, Part Ii, Amanda Leiter

Congressional and Other Testimony

More information available: http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=106263

Statement Of Amanda C. Leiter At The U.S. House Committee On Natural Resources, Subcommittee On Oversight And Investigations Hearing On: Examining Impacts Of Federal Natural Resources Laws Gone Astray, Part Ii, Amanda Leiter

Amanda Leiter

Environmental Control: Guide Or Roadblock To Land Development - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.

We Are Not Alone: How Extraterritorial Application Of The Endangered Species Act Can Preserve International Endangered Species And Habitats, Katherine M. Macrae

Ocean and Coastal Law Journal

The Great Barrier Reef is the world’s largest coral reef ecosystem and is currently in danger of irreparable destruction due to natural and human-made environmental disturbance. This paper focuses on a case, Center for Biological Diversity v. Export-Import Bank, concerning the extraterritoriality application of the Endangered Species Act to a Federal agency’s funding of liquefied natural gas projects in Australia requiring, in part, the dredging of portions of the Great Barrier Reef. As the health of UNESCO World Heritage Sites and other environmentally protected and culturally important geography is jeopardized, United States’ government activity in foreign jurisdictions raises ...

Senator Edmund Muskie's Enduring Legacy In The Courts, Richard J. Lazarus

Maine Law Review

More than any other legislator in the nation’s history, Senator Ed Muskie is environmental law’s champion. Over forty years ago, Muskie helped secure passage of an extraordinary series of ambitious and demanding air and water pollution control laws that sought no less than to redefine the relationship of humankind here in the United States to our natural environment. The upshot has been the nation’s enjoyment, for more than four decades, of enormous economic growth without the kind of accompanying environmental destruction witnessed during the same time period in the nations lacking such controls. While President Richard Nixon ...

Edmund S. Muskie: A Man With A Vision, Leon G. Billings

Maine Law Review

At Senator Muskie’s funeral I noted that I had been on his staff for fifteen years, but had worked for him for thirty. In a way I am still working for him, or at lease, because of him. This fall my colleague and minority counsel, Tom Jorling, and I are team-teaching a course entitled “Origins of Environmental Law” at Columbia University. Preparing for that course, reading old memos to the Senator, re-reading his floor statements, interrogatories, and speeches and going back to the transcripts of Subcommittee discussion has been revealing, inspiring, and refreshing. I am not sure that, at ...

The Ends And Means Of Pollution Control: Toward A Positive Theory Of Environmental Law, David M. Driesen

Utah Law Review

An understanding of environmental law’s means and ends makes it possible to understand the field as a whole, both in terms of the overall structure of statutes and relationships between means and ends. This analysis of means and ends yields a host of valuable insights and significant research questions. It also provides an important foundation for evaluating proposed regulatory reforms. A reasonably complete theory, at a minimum, should also explain key features of the enforcement regime and the allocation of authority among governments. The theory of means and ends articulated here constitutes a very substantial step forward in constructing ...

Animal Rights Unraveled: Why Abolitionism Collapses Into Welfarism And What It Means For Animal Ethics, Luis E. Chiesa

Journal Articles

Most people support laws that seek to reduce the suffering of animals. Yet animal cruelty statutes and other kinds of animal welfare laws are under sustained attack by the so-called abolitionists. Animal rights abolitionists claim that it is categorically wrong to treat animals as commodities, and animal welfare laws should be opposed because they do not alter the property status of animals. Abolitionists also claim that animal welfare regulations do not meaningfully reduce animal suffering. In fact, abolitionists argue that such statutes likely increase future animal suffering, either by delaying the advent of abolition or by soothing the conscience of ...

Case Note: Jacobs V Save Beeliar Wetlands (Inc), Phillip Paul

The University of Notre Dame Australia Law Review

No abstract provided.

National Wildlife Federation V. National Marine Fisheries Service, Jacob R. Schwaller

Public Land & Resources Law Review

The tide in the legal battle surrounding anadromous fish protections in the Columbia River watershed most recently swung in favor of the fish. In the latest iteration of National Wildlife Federation v. National Marine Fisheries Service, the Court found in a lengthy opinion that NOAA fisheries acted arbitrarily and capriciously when it issued its 2014 BiOp concluding that the FCRPS did not violate the ESA. The Court also ruled that the Corps violated NEPA by failing to prepare an environmental impact statement in connection with their records of decision implementing reasonable and prudent alternatives in the BiOp. This decision could ...

Kain V. Department Of Environmental Protection, Sarah M. Danno

Public Land & Resources Law Review

Global climate change and its chronic frustrations generated passage of the Massachusetts Global Warming Solutions Act. The Massachusetts Legislature imposed time-bound implementation mandates on the Massachusetts Department of Environmental Protection with Massachusetts residents acting as compliance watchdogs. In Kain, the Supreme Judicial Court of Massachusetts interpreted the Act in favor of environmental integrity and strict agency compliance standards.

Environmental Protection As A Learning Experience, Daniel A. Farber

Daniel A Farber

No abstract provided.

Environmental Justice And Community-Based Reparations, Catherine Millas Kaiman

Seattle University Law Review

This Article seeks to illuminate the lack of adequate legal remedies that are available for low-income, predominantly minority communities that have suffered historic environmental injustices. The Article not only discusses the lack of adequate legal remedies, but also proposes the use of local, state, and federal reparations programs for communities that have previously suffered environmental injustices; are still living with the effects of environmental injustices, by way of disease, air, soil, and water pollution; or are suffering current and ongoing environmental injustices. As has been recently illustrated by Michigan’s state action of providing lead-contaminated water for over a year ...

Lodging The Sustainable Development Goals In The International Trade Regime: From Trade Rhetoric To Trade Plethoric, Nasser A. Alreshaid

Nasser A Alreshaid

While the international community is stimulated by the new sustainable development goals’ impetus, the global trade regime lives through its 40’s mid-life crisis and anticipates what it does not know. Views of the multilateral trading system being stalled by a proliferation of other preferential trade agreements, signal a deep inquiry into this policy trend. What this paper intends to highlight though, is that if lessons are drawn from the new sustainable development goals, these global trade challenges could be mere air turbulence. By introducing the needs of states and their constituents through these goals, an inclusive and more representative ...

Climate Change Law And Policy In The European Union, Sanja Bogojevic

Sanja Bogojević

No abstract provided.