Administrative Law Commons^™

Crow Indian Tribe V. United States, Hallee Kansman

Public Land & Resources Law Review

The protection status of the Greater Yellowstone grizzly bear continues to elicit debate and find its way into the courtroom. In Crow Indian Tribe v. United States, for the second time in the last decade, a court held the Service’s attempt to delist the Yellowstone Grizzly arbitrary and capricious. Specifically, the court found the Service’s evaluation of remnant populations, recalibration, and genetic health deficient. This case demonstrates the importance in and the resilient motivation behind preserving grizzly bear populations and genetics. As the practice of delisting a species under the Endangered Species Act continues, this case will provide important …

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Pace Environmental Law Review

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

Standing Up For A Cleaner Town: How The Ehb's Broad Definition Of Standing In Friends Of Lackawanna V. Department Of Environmental Protection Expands Citizens' Appellate Rights, Zoey H. Lee

Villanova Environmental Law Journal

No abstract provided.

Surrogate Science And Judicial Deference To Agency Findings: How The Ninth Circuit Keeps Exemptions For Bioenergy On Track In Helping Hand Tools V. Epa, Joshua Schmid

Villanova Environmental Law Journal

No abstract provided.

No Harm, No Foul: How The Ninth Circuit's Decision In Ground Zero Center For Non-Violent Action V. United States Department Of The Navy Essentially Weakens The Eis As An Enforcement Mechanism Of Nepa, Kathryn T. Siegeltuch

Villanova Environmental Law Journal

No abstract provided.

Western Organization Of Resource Councils V. United States Bureau Of Land Management, Seth Sivinski

Public Land & Resources Law Review

To what extent must the BLM analyze potential climate change impacts where millions of acres of public lands and federal mineral estates are being considered for coal development? Western Organization of Resource Councils v. BLM addresses this, setting the scope for NEPA-mandated environmental impact analysis and reasonable alternative consideration by federal agencies. Judge Brian Morris of the District of Montana eschewed BLM’s assertions that considering climate impacts would be speculative, instead requiring BLM to acknowledge scientific reality and include modern climate science in its NEPA review analysis.

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …

Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson

Public Land & Resources Law Review

No abstract provided.

Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic

Public Land & Resources Law Review

No abstract provided.

Center For Biological Diversity V. Zinke, Ryan Hickey

Public Land & Resources Law Review

The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding, highlighting how …

Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker

Public Land & Resources Law Review

In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit the taking of …

Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains

Public Land & Resources Law Review

Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA request …

Abandoned But Not Forgotten: Improperly Plugged And Orphaned Wells May Pose Serious Concerns For Shale Development, Bret Wells, Tracy Hester

Michigan Journal of Environmental & Administrative Law

This Article addresses the intersection of oil and gas law and environmental law on a topic that has profound significance for the nation’s oil industry and for the environment. In this regard, the Permian Basin is experiencing a renaissance that has fundamentally impacted oil production in the United States. Horizontal drilling and hydraulic fracturing now allow the industry to produce in the Permian Basin’s unconventional shale formations in ways that were unimaginable a decade ago. But, the hot shale plays within the Permian Basin exist above conventional fields that are littered with a century’s worth of abandoned wells. Fracturing new …

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory authorities nor …

Buffalo Field Campaign V. Zinke, Hallee C. Kansman

Public Land & Resources Law Review

Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.

Western Organization Of Resource Councils V. Zinke, Daniel Brister

Public Land & Resources Law Review

Due to advances in climate science and an increased understanding of coal’s role as a greenhouse gas, Appellant conservation organizations sued the Secretary of Interior for failing to supplement the 1979 Programmatic EIS for the Federal Coal Management Program. The D.C. Circuit Court held neither NEPA nor the APA required a supplemental EIS and that the court lacked jurisdiction to compel the Secretary to prepare one. Expressing sympathy for the Appellants’ position, the D.C. Circuit took the unusual step of offering advice to future plaintiffs on how they might succeed on similar claims.

Florida's Development Of Regional Impact Process, Practice, And Procedure, Alfred Lloyd Frith

Florida State University Journal of Land Use and Environmental Law

This Article sets forth and analyzes the Development of Regional Impact (DRI) Process and suggests changes which should be made to improve the process under the Florida Environmental Land and Water Management Act. The Article discusses how to determine whether a project is a DRI subject to regulation under chapter 380, Florida Statutes. The Article also discusses various DRI review procedures, including regular DRI review, coordinated review process, master development approval, substantial deviations, and area-wide development plans. The Article explains the appeals process under chapter 380, including standing, procedure and scope of review. The Article concludes that if the DRI …

Balancing Economic Growth And Air Pollution: Prevention Of Significant Deterioration And The Protection Of Florida's Future, Enola R. Tobi

Florida State University Journal of Land Use and Environmental Law

This Article researches the history of the Prevention of Significant Deterioration (PSD) program of the Clean Air Act, which serves to protect air quality in areas of the nation where the air is cleaner than the national ambient air quality standards. The Article also attempts to align the goals of the PSD program with those of the State of Florida, and proposes a system of administration that would accomplish these goals with the fewest restrictions. Finally, the Article analyzes the present methods adopted by other states, as well as those proposed by economists, industry members and environmentalists.

The Valuation Of Wetlands, Kathryn Gale Winter Cowdery, Karl Scheuerman, J. Christopher Lombardo

Florida State University Journal of Land Use and Environmental Law

This Article asserts that an understanding of wetland valuation requires consideration of many disciplines, including biology, chemistry, social sciences, economics, and state and federal law. The authors explain that wetland valuation is dependent upon the definition of "wetland" in the area under study and the surrounding situation, and conclude that if practitioners understand the major points of wetland appraisal, they will be able to present hearing officers and judges with relatively sophisticated, comprehensive, and accurate information upon which rulings can be based.

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …

Environmental Health Regulation In The Trump Era: How President Trump’S Two-For-One Regulatory Plan Impacts Environmental Regulation, Elizabeth Ann Glass Geltman

University of Michigan Journal of Law Reform

This Article explores the Trump regulatory reform agenda and its potential impact on environmental determinants of health. The Article begins with a discussion of the Department of Commerce’s (DOC or Commerce) initial fact-finding investigation to evaluate the impact of federal regulations on domestic manufacturing. The Article next presents an overview of the Trump administration’s regulatory reform formula as announced in E.O. 13771 and the interim guidance explaining E.O. 13771 and E.O. 13777 (the executive order announcing the Trump administration’s plans to enforce the regulatory reform plan announced in E.O. 13771). The Article then examines the federal agency initiatives undertaken in …

Bait And Switch: Taking Native Species On And Off The List Due To Invasive Species, Connie Mccarthy

Environmental and Earth Law Journal (EELJ)

No abstract provided.

Water Is Life: The Native American Tribal Role In Protecting Natural Resources, Susan M. Larned

Environmental and Earth Law Journal (EELJ)

No abstract provided.

From Land Or From Air: Why A Unified Energy Resource Scheme Is Necessary When The Answer Is Both, J. Brent Marshall

Environmental and Earth Law Journal (EELJ)

No abstract provided.

Rethinking "Imminent Harm" As It Relates To Asian Carp In Lake Michigan And Other Invasive Species, Philip S. Traynor

Environmental and Earth Law Journal (EELJ)

No abstract provided.

Native Ecosystems Council V. Marten, Rebecca A. Newsom

Public Land & Resources Law Review

In Native Ecosystems Council v. Marten, the Ninth Circuit found that the United States Forest Service did not violate the Endangered Species Act, National Forest Management Act, or National Environmental Policy Act, when it proposed the Lonesome Wood Vegetation Management 2 Project in the Gallatin National Forest of Montana, even though the decision was inconsistent with the United States Forest Service’s reports. The Ninth Circuit’s holding demonstrated the wide amount of deference the courts will give the Forest Service when determining the best available scientific data.

Front Matter, Michigan Journal Of Environmental & Administrative Law

Michigan Journal of Environmental & Administrative Law

Front matter for Volume 7, Issue 2 of Michigan Journal of Environmental & Administrative Law