Law Commons^™

Strategies For Making Sea-Level Rise Adaptation Tools 'Takings-Proof', Michael Allan Wolf

Michael A Wolf

While the costs of some Sea-Level Rise (SLR) adaptation tools are undeniably daunting, the American legal system poses an additional, potentially budget-busting impediment — the Takings Clause of the Fifth Amendment to the United States Constitution. Officials at all governmental strata and from all three branches should keep the demands made by the Takings Clause, as interpreted by the judiciary, in mind as they choose tools from the diverse SLR-adaptation toolbox, as they justify their choices to the electorate and other constituencies, as they put those tools to use, and as they defend that use from litigants claiming abuse. This …

The Shifting Sands Of Property Rights, Federal Railroad Grants, And Economic History: Hash V. United States And The Threat To Rail-Trail Conversions, Danaya C. Wright

Danaya C. Wright

This Article is an analysis of a federal circuit case from 2005 that has spawned some disturbing precedents in the area of federal transportation and railbanking policy. Specifically, the National Trails System Act (NTSA) provides a mechanism for preserving unused railroad corridors for future reactivation while allowing interim recreational trail and mixed utiity use along the corridor. Converting rail corridors to recreational trails is a very popular process and communities across the country are demanding more and more conversions, as people seek the amenities of linear parks and greenways. Hash v. United States, however, deals with the property rights underlying …

The Environmental Commerce Clause, Christine A. Klein

Christine A. Klein

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause -- the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect. This study …

Water Transfers: The Case Against Transbasin Diversions In The Eastern States, Christine A. Klein

Christine A. Klein

Water policy in the western states consistently has embraced a nineteenth century, supply-side mentality, requiring cities and other water providers to satisfy an ever-growing demand for water at virtually any cost. As a result, the western states rely upon thousands of engineered water transfers-even siphoning water from one side of mountain ranges to the other-in an un-sustainable attempt to support growth. This article challenges the conventional reliance upon transbasin diversions as a response to shortage. It argues that importing water from distant watersheds lulls growing communities into a false sense of security, subsidizes unsustainable growth, and exacts significant social, economic, …

The Law Of The Lakes: From Protectionism To Sustainability, Christine A. Klein

Christine A. Klein

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country-the Colorado River Basin-where residents have also undertaken the task of managing a water system that includes two nations(The United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and …

Water Bankruptcy, Christine A. Klein

Christine A. Klein

Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although this distress sounds like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns the western prior appropriation system of water law, which allocates the right to use water under the priority principle of “first in time, first in right.” In many states, the system is so “over-allocated” that it promises to deliver annually much more water than nature provides. The crisis will deepen as …

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

Christine A. Klein

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 …

Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann

Christine A. Klein

This Article takes a national view of the modernization of water law. Using Florida as an example, it identifies some of the most important and controversial challenges faced by states. Part II provides an overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in a piecemeal fashion, resulting in a patchwork of rules -- common law and statutory, old and new. In rare cases -- including that of Florida -- the process may be more …

Compartmentalized Thinking And The Clean Water Act, Christine A. Klein

Christine A. Klein

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …

Preserving Monumental Landscapes Under The Antiquities Act, Christine A. Klein

Christine A. Klein

This Article examines the Antiquities Act, a 1906 statute that delegates authority to the President to establish national monuments on federal lands for the protection of prehistoric structures and relics. This modest statute, originally a scant one page in length, has set off a century of intermittent controversy that its drafters could not have anticipated. Although Congress probably intended that the statute merely protect archaeological ruins from looting by treasure hunters, presidents quickly began to utilize the statute to preserve large natural landscapes -- ranging from President Theodore Roosevelt's establishment of the 800,000-acre Grand Canyon National Monument in 1908 to …

Conceptualizing Climate Justice In Kivalina, Marissa Knodel

Seattle University Law Review

Due to climate change, indigenous communities in Alaska are forced to develop in ways that adversely affect their livelihoods and culture. For example, decreases in sea ice, increases in the frequency of sea storms, and melting permafrost have so accelerated the erosion of one barrier island that an entire village faces relocation. These indigenous communities, which have contributed little to causing climate change, are limited in their ability to adapt. After examining three broad questions about the effects of climate change on indigenous communities, this Article reaches four preliminary conclusion about relocation as a climate adaptation strategy and its relations …

Oil And Gas In America's Arctic Ocean: Past Problems Counsel Precaution, Michael Levine, Peter Van Tuyn, Layla Hughes

Seattle University Law Review

This Article provides context for the controversy facing government agencies charged with making decisions about the future of America’s Arctic Ocean. It then distill themes that, if addressed, could help further a lasting solution for this region that respects its natural and human values while crafting a reasonable path forward for decisions about development. First, this Article offers background about the region, the threats facing it, and some of the challenges in managing the natural resources there. Second, it provides an overview of the legal framework through which the United States government makes decisions about whether and under what conditions …

Fisheries Governance And How It Fits Within The Broader Arctic Governance, Adam Soliman

Seattle University Law Review

Climate change is causing the Arctic ice to melt and fish stocks to change their migration patterns. These changes are increasing access to Arctic fisheries, as well as moving other fish stocks to the north. To prevent the depletion of fish stocks and to protect the Arctic environment, proper fisheries governance requires collaboration between nation-states and specific populations. Fisheries present unique governance and management issues. Unlike other natural resources, fish stocks do not stay in the same place. The non-stationary nature of fish stocks, along with shared sovereignty over the oceans, make coordination between stakeholders the most difficult as well …

Changes In Latitudes Call For Changes In Attitudes: Towards Recognition Of A Global Imperative For Stewardship, Not Exploitation, In The Arctic, Taylor Simpson-Wood

Seattle University Law Review

For more than two centuries, the imagination of mariners has been captured by visions of a trade route across the Arctic Sea allowing vessels to travel from the Atlantic to the Pacific Ocean. Known as the Northwest Passage, this fabled route is a time- and money-saving sea lane running from the Atlantic Ocean Arctic Circle to the Pacific Ocean Arctic Circle. Now, the thinning of the ice in the Arctic may transform what was once only a dream into a reality. New shipping lanes linking the Atlantic and Pacific oceans are likely to open between 2040 and 2059. If loss …

Acts Of God Or Toxic Torts? Applying Tort Principles To The Problem Of Climate Change, Eduardo M. Peñalver

Eduardo M. Peñalver

The problem of climate change continues to be an intractable one for policymakers. Uncertainties over the likely costs of climate change as well as over the costs of proposed remedies have hampered the formation of a consensus regarding the best course of action. The principles of tort law provide a useful means of analyzing the problem of climate change, particularly the issue of who should bear the costs associated with its effects. The two major goals of tort law (reducing the costs of accidents and corrective justice) both point towards the appropriateness of placing the costs of climate change on …

Letter To The City Of San Francisco Concerning Hunters Point Candlestick Park Implosion, Environmental Law And Justice Clinic, Golden Gate University School Of Law

Environmental Law and Justice Clinic

Letter requesting that the San Francisco Planning Department decertify Addendum 3 to the Environmental Impact Report for the Candlestick Point-Hunters Point Shipyard Phase II; and engage the residents in the Bayview-Hunters Point community to arrive at a sound decision on an alternative that has the least air quality impacts on this vulnerable community.

Cts Corp. V. Waldburger, Lindsay M. Thane

Public Land & Resources Law Review

The Supreme Court determined that a North Carolina statute of repose barred plaintiffs from bringing suit against CTS Corporation for contamination that occurred on land CTS owned 24 years earlier. The Court found that CERCLA preempts state statutes of limitations in order to allow plaintiffs’ claims to accrue when the injury is caused by contamination that has a long latency period. However, the Court also decided that CERLCA does not preempt state statutes of repose because Congress did not specifically preempt them as they did with statutes of limitations, thus; enforcing statutes of repose was not found to frustrate the …

How Courts Can Prevent Excess Emitters From Using Bankruptcy As A Forum To Avoid California Ab 32’S Allowance Deductions, Mohammed Tehrani

The Journal of Business, Entrepreneurship & the Law

This paper identifies bankruptcy as a forum in which entities that exceed their emissions limit might be able to avoid the accompanying allowance deduction. Specifically, an entity might be able to sell its assets free and clear of its allowance deduction liabilities through Section 363 to a new company comprised of the same actors. Part II contrasts which liabilities can be discharged through a Chapter 11 plan and which can be avoided through a free and clear sale under Section 363. Part III analyzes whether allowance deductions could be discharged through a Chapter 11 plan or avoided through a free …

Nimby: Not In Mexico's Back Yard? A Case For Recognition Of A Human Right To Healthy Enviroment In The American States, Scott D. Cahalan

Georgia Journal of International & Comparative Law

No abstract provided.

The National Environmental Policy Act Of 1969 And Its Implications For Nafta: Public Citizen V. United States Trade Representative, 822 F. Supp. 21 (D.D.C.), Rev'd 5 F.3d 549 (D.C. Cir. 1993)., Kristin R. Loecke

Georgia Journal of International & Comparative Law

No abstract provided.

The North American Free Trade Agreement (Nafta): Good For Jobs, For The Environment, And For America, Thomas J. Schoenbaum

Georgia Journal of International & Comparative Law

No abstract provided.

Alaska County Action On Toxics V. Aurora Energy Services, Llc, Lindsey M. West

Public Land & Resources Law Review

On September 3, 2014, the Ninth Circuit Court of Appeals reversed and remanded a district court decision that exempted non-stormwater discharges of coal into Alaska’s Resurrection Bay from Clean Water Act liability. The Court of Appeals reasoned that defendants, Aurora Energy Services, LLC and Alaska Railroad Corp., were not shielded from liability under the Clean Water Act because National Pollutant Discharge Elimination System general permits unambiguously prohibit non-stormwater discharges of coal. The general permit lists eleven categories of authorized non-stormwater discharges, none of which include non-stormwater discharges of coal. Thus, the court concluded that the general permit plainly disallowed defendant’s …

Not A Drop To Spare: The Global Water Crisis Of The Twenty-First Century, Ranee Khooshie Lal Panjabi

Georgia Journal of International & Comparative Law

No abstract provided.

Environment - Endangered Species - Extraterritorial Application Of The Endangered Species Act Of 1973. Defenders Of Wildlife V. Lujan, 911 F.2d 117 (8th Cir. 1990), Cert. Granted, Lujan V. Defenders Of Wildlife, 111 S. Ct. 2008 (1991)., Jeffery P. Robbins

Georgia Journal of International & Comparative Law

No abstract provided.

European Economic Community - Environmental Policy - Economic And Fiscal Instruments - Report Of The Working Group Of Experts From The Member States Proposes The Use Of Economic And Fiscal Instruments To Attain Community-Wide Environmental Goals, John B. Nicholson

Georgia Journal of International & Comparative Law

No abstract provided.

Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt

Joel M Pratt

Because fracking regulators and industry need both legal clarity and the ability to react to new information, courts should apply principles of administrative deference to resolve conflicts between state and local fracking regulations.Under these principles, courts weigh expert agency decision making more heavily when the agency has acted reasonably. When faced with a conflict between state and local fracking laws, courts should adopt administrative principles and privilege expert agency regulations rather than engage in an independent judicial inquiry. Part I provides background on fracking and argues that states are in the best position to regulate the practice. Part II then …

Meeting Summary Of Colloquium On Policy, Law, Contracts, And Sustainable Development, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI and the Institute for Human Rights and Business co-convened a colloquium on policy, law, contracts, and sustainable development, with a particular focus on large-scale investments in the extractive industries and the agriculture sector. The colloquium provided an opportunity for practitioners to share information on their related work, as well as to reflect on current practices and remaining gaps regarding efforts to embed sustainability and human rights into large-scale deals. This outcome document provides a summary of the discussion, while its annex includes information on participants’ relevant programs, initiatives, and tools.

Toward Win-Win Sustainable Development, Linda Moon

Columbia Center on Sustainable Investment Staff Publications

An interview with Lisa Sachs, Director of the Columbia Center on Sustainable Investment.

Outcome Report Of Roundtable On Governing Natural Resources, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI convened a one-day roundtable focused on lessons learned from good governance initiatives for extractive industry investments and large land-based agricultural investments. The roundtable brought together a range of stakeholders working on extractive industry investments and/or land-based forestry and agricultural investments, including representatives from civil society, government, academia, and the private sector. CCSI has published an outcome note from this roundtable.

Key structural differences between the extractive industries and the forestry and agriculture sectors mean that not all lessons learned from good governance initiatives related to extractives investments or land-based agricultural investments are transferrable. However, large-scale extractive …

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Brigham Young University Journal of Public Law

No abstract provided.