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Full-Text Articles in Law
Market Failures And Protecting The Environment, Chad J. Mcguire
Market Failures And Protecting The Environment, Chad J. Mcguire
Chad J McGuire
Whether you agree with government intervention, or with the specific form of gov- ernment intervention applied, it is a fact that government becomes involved in environ- mental issues because, to date, we have failed to fully inter- nalize the costs of our actions toward the environment in our market systems. So this is why government becomes involved in the first place, to correct existing and recurring market failures. Knowing this important fact helps us better understand, and judge, envi- ronmental laws and policies.
Valuing Ecosystem Services In Coastal Management Policy: Looking Beyond The Here And Now, Chad J. Mcguire
Valuing Ecosystem Services In Coastal Management Policy: Looking Beyond The Here And Now, Chad J. Mcguire
Chad J McGuire
This article explores how the identification and account- ing of ecosystem services can aid coastal management policies, particularly as management looks to a future that includes the impacts of climate change. At the core of making better deci- sions is an understanding of the value of ecosystem services. The economic context of ecosystem services is explored in order to outline what may be considered a complete account- ing of costs. Once contextualized, ecosystem services will then be applied to current coastal management issues associ- ated with sea level rise. In particular, policy-relevant questions about mitigating and adapting to sea level …
Thinking Ahead: The Impacts Of Sea Level Rise On Coastal Landscape Protections, Chad J. Mcguire, Devon Lynch
Thinking Ahead: The Impacts Of Sea Level Rise On Coastal Landscape Protections, Chad J. Mcguire, Devon Lynch
Chad J McGuire
The purpose of this article is to highlight the impact of sea level rise on coastal landscape protections. To begin, a summary is provided of how coastal land is both utilized and protected. The utilization of coastal land includes a discussion of the values associated with coastal zones, including the development value of coastal land and the intrinsic ecological values that exist within coastal landscapes. From this summary, the issue of coastal landscape protection is discussed in relationship to sea level rise. This discussion focuses on two main choices relative to sea level rise response: staying at the coastline or, …
Regulatory Takings Claims And Coastal Management Of Sea Level Rise: Remembering Governments Are More Than Regulators, Chad J. Mcguire
Regulatory Takings Claims And Coastal Management Of Sea Level Rise: Remembering Governments Are More Than Regulators, Chad J. Mcguire
Chad J McGuire
The purpose of this article is to highlight some of the roles government can take on that exist outside the traditional regulatory powers of government. Two such nonregulatory roles include the rights of government as the property owner of submerged lands, and the rights/ obligations of government as trustee of the public trust under the public trust doctrine that exists at common law and also statutorily in many coastal states. The reasons these nonregulatory roles are important considerations is because of the reasonable argument that a government that is not acting in a regulatory capacity cannot be said to be …
Systems Thinking Applied To U.S. Federal Fisheries Management, Chad J. Mcguire, Bradley P. Harris
Systems Thinking Applied To U.S. Federal Fisheries Management, Chad J. Mcguire, Bradley P. Harris
Chad J McGuire
The goal of this article is to provide the reader with a kind of historical case study on how fisheries law and policy evolution has brought management of the resource to a more ‘systems-centered’ approach. In addition to this historical rendition, another goal of this article is to identify some areas of potential growth, specifically the development of legal instruments that are more adapted to systems principles.
Coastal Planning, Federal Consistency, And Climate Change: A Recent Divergence Of Federal And State Interests, Chad J. Mcguire
Coastal Planning, Federal Consistency, And Climate Change: A Recent Divergence Of Federal And State Interests, Chad J. Mcguire
Chad J McGuire
The purpose of this article is to identify the contrasting policy approaches being undertaken at the state and federal levels with respect to climate change and offshore resource development respectively, noting how these respective approaches are leading to a divergence between state and federal priorities in the marine environment. The divergent approaches identified will be placed in the context of the CZMA, particularly the federal consistency requirement of that act, which helps to define the relationship between state and federal actions in ocean waters. Legal issues that arise from this divergence will be identified and analyzed. We begin with identification …
Climate Adaptation And The Fifth Amendment Of The U.S. Constitution: A Regulatory Takings Analysis Of Adaptation Strategies In Coastal Development With Application To Connecticut’S Coastal Management Regime, Chad J. Mcguire, Jason Hill
Climate Adaptation And The Fifth Amendment Of The U.S. Constitution: A Regulatory Takings Analysis Of Adaptation Strategies In Coastal Development With Application To Connecticut’S Coastal Management Regime, Chad J. Mcguire, Jason Hill
Chad J McGuire
As climate change impacts are realized at the governance level, states and local governments are moving towards adaptation strategies that include increasing restrictions on how land is used in coastal zones. The purpose of this article is to review state regulatory strategies that are attempting to adapt to climate change in light of limits placed on those strategies by the Fifth Amendment to the United States Constitution: the prohibition against the taking of private property by government action without a public purpose and just compensation. This article highlights the importance in identifying the roles governments can take beyond the role …
A Review Of Amendment 16 To The Northeast Multispecies Fishery Management Plan, Jonathon N. Feinberg, Chad J. Mcguire
A Review Of Amendment 16 To The Northeast Multispecies Fishery Management Plan, Jonathon N. Feinberg, Chad J. Mcguire
Chad J McGuire
The purpose of this article is to review Amendment 16 to the Northeast Multispecies Fishery Management Plan, highlighting some of the legal and policy implications to the fishing community and regulatory bodies. Questions of impact are framed from the local fishing community perspective, while larger questions of regulatory implications, including statutory purpose, are identified where appropriate. The article concludes by identifying necessary policy questions that need to be resolved if we are to move toward a coherent strategy of national fisheries management that is both rational for the sake of the resource, and equitable to those who are most directly …
Who Owns The Fish? Moving From The Commons To Federal Ownership Of Our National Fisheries, John B. Walden, Chad J. Mcguire
Who Owns The Fish? Moving From The Commons To Federal Ownership Of Our National Fisheries, John B. Walden, Chad J. Mcguire
Chad J McGuire
The purpose of this article is to explore a premise that fishery management at the federal level would be more effective if the U.S. government simply charged for the privilege to commercially harvest fish. This argument is supported by a mix of historical fact-finding and legal precedent, brought together in an attempt to identify a basic economic principle of property rights. The goal is to allow both practitioners and policy makers an opportunity to view fishery management options through a lens of government property rights, and show how a rational distribution of those rights through advancing market mechanisms may provide …
Marine Mammals And International Trade: Balancing Social Conscience With Trade Obligations – A Summary And Update On The World Trade Organization Seal Products Dispute, Chad J. Mcguire
Chad J McGuire
The purpose of this article is to provide a summary of the current debate surrounding the proposed European Union expansion of barriers to trade in seal products. This article will also identify some of the potential legal issues at the heart of the ban. Finally, some policy considerations that may arise depending on how this case ultimately resolves itself will be highlighted. What is reinforced in this case study is the notion that the interaction between domestic policy and international law can often create unique frustrations where seemingly independent goals can lead to legal conflicts. This case study is an …
Some Back-Ended Legal And Political Issues In United States Fisheries Management, Chad J. Mcguire, Bradley P. Harris
Some Back-Ended Legal And Political Issues In United States Fisheries Management, Chad J. Mcguire, Bradley P. Harris
Chad J McGuire
In response to over-exploitation and ecosystem degradation, United States federal fisheries policy is shifting from species-based to ecosystem-based management. In addition, the reauthorized Magnuson-Stevens Fisheries Conservation and Management Reauthorization Act of 2006 identifies the following goals to be achieved by 2011: end over-fishing, create market-based incentives, strengthen enforcement mechanisms, and improve cooperative conservation efforts. We refer to these goals (including the “status quo”) as front-ended policy objectives. Left unresolved are what we term back-ended policy and legal issues, specifically including issues involving the legal limitations that inhibit full consideration of ecosystem-based management principles through the adopting of scientific information. In …
Sustainable Approaches To Managing Small-Scale Ecosystems: A Case Study Of Vernal Pool Protection In The Commonwealth Of Massachusetts, United States Of America, Chad J. Mcguire
Chad J McGuire
This paper reviews the current management scheme used by Massachusetts to protect vernal pools, which represent small-scale ecosystems, and analyzes its relative strengths and weaknesses from an overall sustainability standpoint by looking at the frameworks developed for management. The frameworks are analyzed to determine if the objectives of vernal pool protection are being met. The initial impression is the outcomes are not meeting the objective of overall vernal pool protection, because there are failures in the drivers (mainly the certification requirement), which limits the number of verbal pools actually protected. An expansion of the current Massachusetts program is suggested to …
Climate Adaptation And The Fifth Amendment To The United States Constitution: How Do Adaptation Strategies Impact Regulatory Takings Claims?, Chad J. Mcguire
Climate Adaptation And The Fifth Amendment To The United States Constitution: How Do Adaptation Strategies Impact Regulatory Takings Claims?, Chad J. Mcguire
Chad J McGuire
As the impacts and potential of climate change are realized at the governance level, states are moving towards adaptation strategies that include greater regulatory restrictions on development within coastal zones. The purpose of this paper is to outline the impacts of existing and planned regulatory mechanisms on the Fifth Amendment to the United States Constitution, which prevents the government taking of private property for public use without just compensation. A short history of regulatory takings is explained, and the potential legal issues surrounding mitigation and adaptation measures for coastal communities are discussed. The goal is to gain an understanding of …
Judicial Approaches To Dealing With Constitutional Limitations Surrounding Ecosystem-Based Management: Can Rapanos Offer Guidance By, Chad J. Mcguire
Judicial Approaches To Dealing With Constitutional Limitations Surrounding Ecosystem-Based Management: Can Rapanos Offer Guidance By, Chad J. Mcguire
Chad J McGuire
Ecosystem-based management is becoming a more prevalent in federal legislative and executive mandates. Still, there are constitutional limitations to applying such measures, especially regarding federal control of certain intrastate water resources. Recent U.S. Supreme Court precedent may suggest a willingness to allow ecosystem-based principles as a foundation to support greater federal control. This paper looks at one recent U.S. Supreme Court decision to determine how far ecosystem-based principles might apply to federal control over intrastate bodies of water.
Remediating Contaminated Sediments Under California’S Regulatory Regime: Are, Chad J. Mcguire
Remediating Contaminated Sediments Under California’S Regulatory Regime: Are, Chad J. Mcguire
Chad J McGuire
California has a legislative mandate to remedy contaminated sediments under state statutory guidelines contained in the Porter-Cologne Water Quality Act. Implementation of these guidelines is delegated to Regional Water Quality Board’s (RWQB) throughout California. RWQB’s have interpreted requirements for contaminated sediment cleanup to be a “background level” approach. Such an approach is in direct conflict with the specific statutory mandates under Porter-Cologne. Instead of requiring a standard of “background levels”, Porter-Cologne is clear in requiring a cost-benefit analysis akin to review standards in the federal Comprehensive Environmental Response for Contaminated Liability Act (CERCLA), and more importantly, the California Hazardous Substance …
Major Terrestrial Causes Of Marine Coastal Pollution: A Critique Of Current Regulation And The Suggestion Of An Alternative Approach To Regulation, Chad J. Mcguire
Major Terrestrial Causes Of Marine Coastal Pollution: A Critique Of Current Regulation And The Suggestion Of An Alternative Approach To Regulation, Chad J. Mcguire
Chad J McGuire
The purpose of this article is to identify agricultural operations as the major source of marine pollution, and present an argument for an alternate regulatory mechanism to properly control these sources. First, causes of marine pollution will be identified. Then, existing federal regulations will be reviewed and criticized. Some emphasis will be placed on §303 of the CWA, and the Total Maximum Daily Load (TMDL) program suggested by EPA. It will be used as a case study to show why ambient-based regulations are ineffective at controlling pollution sources. Limitations on other regulatory programs will be identified and explained. An alternate …