Natural Resources Law Commons^™

The Hallmarks Of A Good Test: A Proposal For Applying The "Functional Equivalent" Rule From County Of Maui V. Hawaii Wildlife Fund, Damien M. Schiff, Glenn E. Roper

Pace Environmental Law Review

The Clean Water Act generally requires a federal permit for the discharge of pollutants “from any point source” to navigable waters. It is undisputed that permits are required for discharges of pollutants from point sources that proceed “directly” to regulated waters. But there is much disagreement over the extent to which indirect point-source discharges are regulated. In an attempt to clarify, the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund ruled that permits are required not just for direct point-source discharges, but also for any point-source discharge that is the “functional equivalent” of a direct point-source …

Come Hell Or High-Water: Challenges For Adapting Pacific Northwest Water Law, Robert T. Caccese, Lara B. Fowler

Pace Environmental Law Review

The Pacific Northwest region of the United States has been recognized as a leader in crafting water laws that work to balance human needs and ecological considerations. However, this region is experiencing changing dynamics that test the strength of existing water policies and laws. Such dynamics include increasing populations, new and exempt uses, quantification of tribal treaty rights, species protection, renegotiation of the Columbia River Treaty, and the impacts of a changing climate. Together, these dynamics are stressing the legal framework, which remains vital to ensuring sustainable water supplies now and into the future. The history behind water resources management …

Omnipresent Chemicals: Tsca Preemption In The Wake Of Pfas Contamination, Frederick A. Mcdonald

Pace Environmental Law Review

Over the past few decades, studies addressing the harms of PFAS have gradually progressed, and now scientists believe increased exposure could lead to reproductive defects and a higher risk of cancer. Given the amplified concern surrounding these pervasive chemicals, states are proactively filing lawsuits on behalf of their citizens and enacting legislation to combat this nation-wide contamination epidemic. However, given the 2016 Amendment to the Toxic Substances Control Act of 1976, states looking to regulate the manufacturing or looking to ratify a state- wide ban on the manufacturing of such chemicals may face preemption under actions taken by the United …

The Time Has Come For A Universal Water Tribunal, Tarek Majzoub, Fabienne Quilleré-Majzoub

Pace Environmental Law Review

Since its inception in 1981, the International Water Tribunal has emerged as a non-governmental body with a multidisciplinary composition and a mandate based on conventional and customary international water law, which holds public hearings in order to address water-related complaints. This Article describes the historical background of the proposed Universal Water Tribunal (“UWT”) and significant difficulties on the horizon facing the proposed Tribunal (including political, practical, and legal-technical considerations). It then summarizes the key factors of such Tribunal and, finally, touches upon the proposed model based on an expanded concept of jurisdiction. The main underlying thesis is that, whereas the …

State Public Nuisance Claims And Climate Change Adaptation, Albert C. Lin, Michael Burger

Pace Environmental Law Review

This Article explores the potential for state public nuisance claims to facilitate adaptation, resource protection, and other climate change responses by coastal communities in California. The California public nuisance actions represent just the latest chapter in efforts to spur responses to climate change and attribute responsibility for climate change through the common law. Part II of this Article describes the California public nuisance lawsuits and situates them in the context of common law actions directed against climate change. Part III considers the preliminary defenses that defendants have raised and could raise in the California public nuisance lawsuits, including the existence …

Cleaning Up Our Toxic Coasts: A Precautionary And Human Health-Based Approach To Coastal Adaptation, Robin Kundis Craig

Pace Environmental Law Review

Hurricanes in the United States in 2005, 2012, and 2017 have all revealed an insidious problem for coastal climate change adaptation: toxic contamination in the coastal zone. As sea levels rise and violent coastal storms become increasingly frequent, this legacy of toxic pollution threatens immediate emergency response, longer term human health, and coastal ecosystems’ capacity to adapt to changing coastal conditions.

Focusing on Hurricane Harvey’s 2017 devastation of Houston, Texas, as its primary example, this Article first discusses the toxic legacy still present in many coastal environments. It then examines the existing laws available to clean up the coastal zone—CERCLA, …

Friends Or Foes? The Problem Of South Florida’S Invasive Mangroves, Kelly J. Cox, Rafael J. Araújo

Pace Environmental Law Review

A recent global review on the impacts of climate change on mangroves concluded that different regions will experience varying degrees of impacts due to the variability of expected changes in climate (shifts in precipitation, frequency and intensity of storms, droughts, sea level rise, change of ocean currents, increases in CO2 concentrations, etc.) and the variety of types and mangrove assemblages growing in these regions, including different species composition of mangrove forests. In North America and the Caribbean, these changes are dependent upon a predicted higher frequency (and intensity) of tropical storms, sea level rise, changes in patterns of precipitation, and …

Labor Leading On Climate: A Policy Platform To Address Rising Inequality And Rising Sea Levels In New York State, J. Mijin Cha

Pace Environmental Law Review

With the renewed need for state action, this paper presents a case study of a labor-led initiative in New York State that seeks to address both economic inequality and the climate crisis. It discusses how organized labor, which has historically represented fossil fuel workers and has not been seen as a traditional climate ally, put forth a comprehensive climate jobs plan that could meaningfully reduce carbon emissions while also creating good, family-sustaining jobs to reduce income inequality. As the need for a broader coalition to advocate for sensible climate policy increases, this case study provides a road map for states …

Public Conservation Policies On Private Land: A Case Study Of The Brazilian Forest Code And Implications For The Agro-Industry Sector, Rayane Aguiar, Jody M. Endres, Caroline Taylor, Samuel Evans

Pace Environmental Law Review

The objectives of this paper are to discuss (1) a brief history of the Brazilian Forest Code (FC); (2) key aspects of the 2012 FC revisions; (3) the status of implementation, including institutional and field-level challenges, as well as economic incentives to ease compliance; and (4) the importance of the FC for the Brazilian agro-industrial sector.

Choosing Your Ground On The Endangered Species Act: How Do The Ninth, Tenth, And District Of Columbia Circuit Courts Of Appeal Evaluate Water Management Decisions Made By Federal Water Agencies?, Michael Kinsey

Pace Environmental Law Review

The purpose of this article is twofold. First, federal agencies are responsible for the development and implementation of ESA documents, and knowing what a court will look for and at when that document is challenged can help the agencies to develop a document that can better survive court review. Second, a plaintiff who challenges such a document can benefit from that same knowledge, by knowing which elements of the document to best challenge. The intent of this article is to provide practitioners, both agency and non-, with an introduction to that knowledge, to identify some of those difficulties, dangers, and …

Migratory Waterbird Conservation At The Flyway Level: Distilling The Added Value Of Aewa In Relation To The Ramsar Convention, Melissa Lewis

Pace Environmental Law Review

In June 1995, the Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA) was adopted, and this instrument remains the only legally binding waterbird Agreement in the CMS Family. However, while AEWA has been lauded as a very promising instrument, the concern has also been raised that the Agreement “has a large potential scope for the duplication of obligations, especially with regard to the protection of wetland habitats, given the operation of the Ramsar Convention”. The existing literature thus recognizes that overlap between AEWA and the Ramsar Convention is potentially problematic. It fails, however, to provide a detailed analysis of …

Understanding The Lloyd Moratorium And The Science That Supports It, Sarah J. Meyland

Pace Environmental Law Review

This article examines the background to the enactment of the Lloyd Moratorium, the role of science, and a discussion of why limits on certain groundwater use are appropriate. Section Two reviews the history of the Lloyd Moratorium and the challenges to it. The role of the State in implementing the moratorium is also considered. Section Three describes the current guidelines for Lloyd well permits. Section Four reviews the vulnerability of the Lloyd aquifer. Section Five discusses the necessity of setting a high bar for Lloyd aquifer access. Section Six concludes with an outline of how the Long Island aquifer system …

Troubled Water: An Examination Of The Npdes Permit Shield, Stephanie Rich

Pace Environmental Law Review

In this comment I argue for a narrow interpretation of the Clean Water Act (CWA) permit shield by analyzing the recent federal cases addressing the shield’s scope. A narrow interpretation calls for a greater level of compliance and disclosure on behalf of the permit holder in order to invoke the shield’s protection. This argument also includes a higher standard of “reasonable contemplation” of pollutants on the part of the regulator. The first section of this comment gives a brief background of the CWA, the National Pollutant Discharge Elimination System (NPDES), and the permit shield provision. The next section presents the …

The Safe Drinking Water / Food Law Nexus, Margot J. Pollans

Pace Environmental Law Review

At 2 AM on August 2, 2014, the Ohio Environmental Protection Agency issued the following warning to the citizens of Toledo: “Do Not Drink.” The Ohio City's tap water was contaminated with microcystin, a toxin that can cause diarrhea, vomiting, and abnormal liver function. The source was an algal bloom in Lake Erie resulting from high levels of agricultural fertilizers and animal waste. For three days, Toledo residents drank only bottled water.

This is just one of many similar examples of agricultural contamination of urban drinking water supplies. Creating a physical connection between urban and rural communities, this pollution highlights …

Assessing Environmental Governance Of The Hudson River Valley: Application Of An Ippep Model, Wang Xi, Albert K. Butzel, Richard L. Ottinger, Nicholas A. Robinson, John Louis Parker, Taryn L. Rucinski, Marla E. Wieder, Radina R. Valova, Wang Pianpian

Pace Environmental Law Review

The process of obtaining effective implementation of environmental laws is a process of “environmental governance.” Law, including environmental law and other fields of law related to environmental law, is essential to frame, facilitate, and foster the major parties to correctly play their roles.

This thesis has been articulated through a Model of Interactions of Parties in the Process of Environmental Protection (IPPEP Model), which has been developed by Professor Wang Xi of Shanghai Jiao Tong University, in the context of the People’s Republic of China. The IPPEP Model is a tool for observing and accessing environmental governance at work. It …

Only One Mekong: Developing Transboundary Eia Procedures Of Mekong River Basin, Jian Ke, Qi Gao

Pace Environmental Law Review

China shares borders with fourteen countries and has many international rivers. In most cases, China is an upstream state. Over the past years, increasing international disputes concerning international rivers have occurred between China and other riparian states, such as China’s dam construction on the upper Mekong River and the Songhua River pollution accident. In particular, with the ongoing dam construction on the upstream of Mekong in China, its potential environmental impact on the other Mekong countries is highly profiled. At the time of writing, five dams are already completed and two are in the final stage of construction or getting …