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Articles 1 - 30 of 42
Full-Text Articles in Law
Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau
Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau
Ocean and Coastal Law Journal
This comment synthesizes various historical aspects of motor vehicle infrastructure in the United States. The network of issues at play involves centuries of public policy decisions made at the local, state, and federal level, which twentieth century legal innovations hastened and curdled into the car culture we are all a part of today. The public authority is the paradigm of these legal innovations, but it has outlived its usefulness in the face climate change and burgeoning issues relating to urbanism.
Windward Woes: The Misalignment Of Economic Incentives And Renewable Energy Development Goals, Matthew S. Edwards
Windward Woes: The Misalignment Of Economic Incentives And Renewable Energy Development Goals, Matthew S. Edwards
Ocean and Coastal Law Journal
Energy tax credits have always been a significant driver of renewable energy development, but the recent Inflation Reduction Act in response to new national development goals represents the most significant change in several decades. The Inflation Reduction Act is certainly a step in the right direction, but there are numerous factors that limit the impact on future developments that should be remedied to allow for the nation’s best chance to reach 2030 renewable energy goals.
30 Years Removed, Oil-Spill Liability Insurance's Evolution Since The 1989 Exxon Valdez Incident, Rejo Mathew
30 Years Removed, Oil-Spill Liability Insurance's Evolution Since The 1989 Exxon Valdez Incident, Rejo Mathew
Ocean and Coastal Law Journal
In the thirty years since the Exxon Valdez incident, much has changed. This article looks back at the events of the accident and the subsequent changes to the marine pollution insurance industry, from the statutes regulating oil tankers in 1989 to the Oil Pollution Act of the 1990. The regulatory framework resulting from the Exxon Valdez is examined and compared to the litigation deriving from the spill.
Getting The Green Light: Renewable Energy As An Internal Tribal Matter, J. Shinay
Getting The Green Light: Renewable Energy As An Internal Tribal Matter, J. Shinay
Maine Law Review
For over forty years the Wabanaki people of Maine have had their sovereignty diminished as a result of the Maine Indian Claims Settlement Act (MICSA), an arrangement with the state and federal government unlike any other tribal sovereignty arrangement in the Unites States. The MICSA was born from a decades-long debate over land rights and resource rights in Maine, culminating in a “compromise” that avoided political conflict at the expense of Wabanaki sovereignty. Under the MICSA, the Wabanaki do not have sovereign status, instead only holding sovereign control over those matters the state deems “internal tribal matters.” Among the many …
Our Biggest Fans: Nuisance Immunity For Grid-Scale Wind Energy Projects In Maine, Andrew D. Hersom
Our Biggest Fans: Nuisance Immunity For Grid-Scale Wind Energy Projects In Maine, Andrew D. Hersom
Maine Law Review
Global climate change and its attendant impacts threaten to change life on Earth as we know it. The sea level rise that comes with rising temperatures is an issue of particular importance to coastal states like Maine. Thankfully, continued investment in renewable energy technology is beginning to make certain renewable energy sources competitive with their nonrenewable counterparts. This Comment highlights wind energy as a particularly effective option for meeting Maine’s energy needs while significantly reducing the harmful greenhouse gas emissions that contribute to climate change. Despite its many benefits, wind energy technology still has its detractors. Wind energy projects (especially …
Governance Of Ocean-Based Carbon Dioxide Removal Research Under The United Nations Conventions On The Law Of The Sea, Wil Burns
Maine Law Review
There has been a spate of research in recent years indicating that achievement of the temperature objectives of the Paris Agreement can only be effectuated through both aggressive decarbonization of the global economy and large-scale deployment of so-called carbon dioxide removal (CDR) approaches. While much of the early focus of CDR research was on terrestrial options, such as afforestation, direct air capture, and bioenergy with carbon capture and storage, more recently, many in the scientific and policy community have increasingly focused on potential ocean-based approaches, including ocean fertilization, ocean alkalinity enhancement, macroalgae harvesting, and ocean upwelling and downwelling. However, while …
Rising To The Challenge: Managed Retreat And The Taking Clause In Maine's Climate Change Era, Maye C. Emlein
Rising To The Challenge: Managed Retreat And The Taking Clause In Maine's Climate Change Era, Maye C. Emlein
Maine Law Review
It is a near scientific certainty that sea levels will rise between one and eight feet by the end of the century. This will wreak havoc on our infrastructure, ecology, and public health, and cause an unquantifiable amount of economic damage. Given the inevitability of sea level rise, state and local governments must facilitate the managed retreat of people and property away from vulnerable coastal areas. However, governments’ ability to facilitate managed retreat comes head-to-head with the Takings Clauses of the United States and Maine Constitutions, which state that the government may not take private property without paying just compensation. …
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Maine Law Review
In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that the …
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Maine Law Review
In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that the …
The Limited Power Of Federal Bankruptcy Courts To Stay Enforcement Of State Environmental Regulations, David A. Brenningmeyer
The Limited Power Of Federal Bankruptcy Courts To Stay Enforcement Of State Environmental Regulations, David A. Brenningmeyer
Maine Law Review
Over the course of the past few decades, public awareness of privately created environmental hazards has risen. As a result, state and federal legislatures have been moved to enact comprehensive environmental laws that serve both to remedy past harms and to prevent future ones. Today, environmental statutes seek to correct and prevent public health hazards as diverse as groundwater contamination, toxic waste disposal, soil contamination, destruction of native plant and animal habitats, and air pollution, to name but a few. In addition, state and federal courts have permitted the invocation of common law theories, such as nuisance and trespass, to …
Who Takes A Dam: Regulatory Confusion And Surging Opportunities For Small Dam Removal In Rural Maine, Grady R. Burns
Who Takes A Dam: Regulatory Confusion And Surging Opportunities For Small Dam Removal In Rural Maine, Grady R. Burns
Maine Law Review
This Comment examines the regulatory regimes surrounding the removal of state-regulated small dams in Maine by comparing the relatively underdeveloped regime in Maine with the much more coherent and robust regime in neighboring New Hampshire. When compared to more deliberate regimes, Maine’s system lacks key features, including a streamlined permitting program and a single clearinghouse for information, resources, and regulatory enforcement. Given the significant opportunities afforded by a coherent regulatory small dam removal regime, this Comment recommends that Maine follow the example of other states by creating a river restoration and dam removal program, re-establishing its statewide dam inventory, creating …
Conservation, Regionality, And The Farm Bill, Jess R. Phelps
Conservation, Regionality, And The Farm Bill, Jess R. Phelps
Maine Law Review
Over the past several Farm Bills, there has been a somewhat subtle shift in program design to better incorporate regional perspectives/localized areas of conservation concern into national conservation program delivery. The purpose of this Article is to specifically explore the various roles that regional considerations play in existing Farm Bill conservation programs and also consider whether further developments in this direction could result in more flexible program delivery, more effective partnerships, and ultimately, better conservation outcomes. To this end, section II will provide an overview of the history of the Farm Bill, from its origins to the emergence of a …
Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello
Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello
Ocean and Coastal Law Journal
The ocean offers what may seem like endless supply of natural resources, ecosystem services, or for some, simple enjoyment. Yet, in the face of climate change and overexploitation, many of these unique ecosystems and their inhabitants face an uphill battle. A president's use of the Antiquities Act establishing a national monument is an efficient and effective method of protecting these diverse ecosystems, as long as the area to be protected satisfies one of the Act's limitations that the monument be "situated on land owned or controlled by the federal government." Prior to a 2017 lawsuit concerning President Obama's use of …
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Ocean and Coastal Law Journal
In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …
The Role Of State Planning Law In The Regulation And Protection Of Ocean Resources, Edward J. Sullivan
The Role Of State Planning Law In The Regulation And Protection Of Ocean Resources, Edward J. Sullivan
Ocean and Coastal Law Journal
While land use planning is pervasive in the United States, legal structures for the planning and management of ocean resources are less well known or studied. The passage of the federal Coastal Zone Management Act in 1972 provided federal funds for state planning and regulation of coastal areas, with the incentive of binding federal agencies to state and regulations plans certified by the Secretary of Commerce. Most of the focus of CZMA study has been on estuaries and coastal shorelands; much less focus has been on coastal waters. Regarding coastal waters, more attention is given to the three mile ocean …
Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph
Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph
Ocean and Coastal Law Journal
This article offers perspective on how Alaska Native Villages (ANVs), which are small and rural indigenous communities, are adapting to changes in flooding and erosion. It considers which adaptations might be maladaptations and what might be done to facilitate adaptation short of relocating entire communities. It outlines the United States' legal framework applicable to flooding and erosion and considers why this framework may do little to assist ANVs and similarly situated small and rural communities. Findings regarding adaptation strategies and obstacles are drawn from my Ph.D. research, which involved a review of plans for fifty nine ANVs and 153 interviews …
Advancing The Aquaculture Industry Through The Federal Crop Insurance Program, Matthew H. Bowen
Advancing The Aquaculture Industry Through The Federal Crop Insurance Program, Matthew H. Bowen
Ocean and Coastal Law Journal
In recent times, the aquaculture industry has experienced dramatic growth. The growth of the industry is a direct result of an increase in demand for seafood, and a decrease in supply from wild fisheries. The industry, however, is also experiencing growing pains. Aquaculture species, compared to their wild counterparts, are at a higher risk of catastrophic loss from a variety of different perils. These perils make investment in the aquaculture industry significantly risky. The federal crop insurance program could be a tool that mitigates these risks, but the program was designed around terrestrial agriculture, and while aquaculture may be covered …
Marine Renewable Energy Law And Policy In The Bay Of Fundy: The Impact Of Ambiguous Domestic Boundaries In Canada On Nova Scotia's Regulatory Framework, Esteban Salcedo
Marine Renewable Energy Law And Policy In The Bay Of Fundy: The Impact Of Ambiguous Domestic Boundaries In Canada On Nova Scotia's Regulatory Framework, Esteban Salcedo
Ocean and Coastal Law Journal
Using a legal history methodology, this paper examines existing marine renewable energy law and policy in Nova Scotia with a focus on its application in the Bay of Fundy. This paper critically assesses the current approach to coastal management in light of recent recommendations summarized in the Fournier report. This paper argues that, despite clear calls to develop integrated ocean management and marine spatial planning in policies and regulations, Canada and Nova Scotia have failed to do so because of unclear federal-provincial boundaries. Ambiguous domestic borders in the Bay of Fundy have been at the source of an overly cautious, …
Balancing Marine Mammal Protection Against Commercial Fishing: The Zero Mortality Goal, Quotas And The Gulf Of Maine Harbor Porpoise, Mary M. Sauer
Balancing Marine Mammal Protection Against Commercial Fishing: The Zero Mortality Goal, Quotas And The Gulf Of Maine Harbor Porpoise, Mary M. Sauer
Maine Law Review
Marine mammals and commercial fishermen come into direct conflict when marine mammals become entangled in commercial fishing nets. Since marine mammals must come up to the water surface in order to breathe, they will die if they cannot break free of an underwater net. This conflict is exemplified by the plight of the harbor porpoise in the Gulf of Maine. The federal regulatory framework that attempts to balance the competing interests of commercial fishermen and marine mammals is currently in flux, and its final form may determine the fate of species like the harbor porpoise. This Comment will examine the …
Love Of Landfill: Trashing The Maine Constitution To Solve A Garbage Problem, Donald Maurice Kreis
Love Of Landfill: Trashing The Maine Constitution To Solve A Garbage Problem, Donald Maurice Kreis
Maine Law Review
The human family is engaged in a noble struggle against the law of entropy, seeking to turn back or at least retard the inexorable process by which all matter in the known universe passes from useful to useless form. The political and legal system generally refers to useless matter as solid waste; in Maine the Legislature has chosen to wage this struggle against entropy and discourage production of entropical by-products through the enactment of the state's first comprehensive waste management law, "An Act to Promote Reduction, Recycling and Integrated Management of Solid Waste and Sound Environmental Regulation" (hereinafter "the Act"). …
Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith
Environmental Issues For The '90s: Golden-Cheeked Warblers And Yellowfin Tuna, Ernest E. Smith
Maine Law Review
Environmental issues have transformed the areas of law that I have taught for the last thirty-one years. A decade ago environmental law went virtually unmentioned in courses in property, domestic oil and gas law, and international transactions. By 1995 environmental concerns had moved from the periphery to center stage in these legal fields. To someone who teaches and writes about these subjects, the clearest manifestation of this development has been that virtually every first-year property casebook, mining or oil and gas law casebook, and international business transactions casebook, written in the last five years now includes segments on environmental law. …
Instream Flow Regulation: Plugging The Holes In Maine's Water Law, Bradford R. Bowman
Instream Flow Regulation: Plugging The Holes In Maine's Water Law, Bradford R. Bowman
Maine Law Review
States East of the Mississippi River have long relied on the traditional common law of riparian rights to manage their water resources. Towards the end of the Twentieth Century, rising demand for consumptive water use due to population growth, modern agricultural practices and industrialization began to conflict with environmental concerns. Throughout the East, states recognized the riparian doctrine's failure to provide a reliable means for allocating water during times of scarcity. In response, most of these states replaced common law water rights with regulatory water management systems. Maine is the only state that has not followed this trend. It is …
Environmental Injustice And The Problem Of The Law, Uma Outka
Environmental Injustice And The Problem Of The Law, Uma Outka
Maine Law Review
Over the past fifteen years, legal academia has produced a sizeable body of scholarship on the widely acknowledged problem of environmental injustice. Although there have been positive responses in the policy arena, no similar level of concern is evident in the courts. Most legal claims directly addressing environmental injustice fail, recent developments in civil rights case law are discouraging, and current constructions of environmental laws are proving theoretically inadequate to protect communities already subjected to disproportionate toxic exposure or threatened by new pollution. This Comment explores the state of the law of environmental justice and offers an analysis of why …
Smith V. Town Of Pittston: Municipal Home Rule's Narrow Escape From The Morass Of Implicit Preemption, Shane Wright
Smith V. Town Of Pittston: Municipal Home Rule's Narrow Escape From The Morass Of Implicit Preemption, Shane Wright
Maine Law Review
In Smith v. Town of Pittston, the Maine Supreme Judicial Court, sitting as the Law Court, upheld a municipal ordinance adopted by the town of Pittston that prohibited the spreading of septage within Pittston. The majority held that Pittston's ordinance did not violate the Maine Hazardous Waste, Septage and Solid Waste Management Act (Solid Waste Management Act), which “govern[s] the disposal of garbage, sludge, septage and other waste.” The majority interpreted the “home rule” statute as granting sufficient authority to Pittston, as a municipal corporation, to enact the ordinance at issue. The dissent, on the other hand, would have held …
Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka
Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka
Maine Law Review
In fiscal year 2004, Wal-Mart added 139 new discount stores, supercenters, and “neighborhood markets” to its already significant chain of stores across the United States. Wal-Mart developers submit their proposals to governing town bodies all over the country with the promise that the $20 million construction of a 200,000 square foot store will create 500 new jobs for the local economy, will have a payroll of over $12 million, will increase the tax base of the area, and will provide convenient, affordable shopping for consumers. For these reasons, the big box stores are a hard offer for town planners to …
A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, Kevin J. Haskins
Maine Law Review
Congress enacted the Clean Water Act (CWA) in 1972 with the express objective of restoring and maintaining the health of the nation’s waters. To achieve this objective, Congress declared that discharges of pollutants into the nation’s waters are prohibited unless they comply with permit requirements. The CWA’s primary vehicle for regulating discharge permits is the National Pollutant Discharge Elimination System, or NPDES. The CWA defines the phrase “discharge of a pollutant” as the “addition of any pollutant to navigable waters from any point source.” Although the CWA further defines the terms “pollutant,” “navigable waters,” and “point source,” it fails to …
The Role Of Public Interest Groups In Nation-Building: A Maine Lawyer's Experience In Mongolia, Richard A. Spencer
The Role Of Public Interest Groups In Nation-Building: A Maine Lawyer's Experience In Mongolia, Richard A. Spencer
Maine Law Review
In 2006, I spent three months in Ulaanbaatar, Mongolia working as an environmental lawyer with a small Mongolian human rights group called the Center for Human Rights and Development (CHRD). CHRD was working to stop human trafficking, promote human rights, and protect the environment in the face of extreme poverty, government secrecy, corruption, and a post-Soviet government dominated by former members of the Communist party. During my time assisting the staff at CHRD, I felt I could hear the voice of James Madison echoing through the centuries and across the globe. In The Federalist No. 10, Madison suggested that the …
Enforcement Dissonance: Lobsters, The Legislature, And Federal Waters In State V. Thomas, Christopher J. Rauscher
Enforcement Dissonance: Lobsters, The Legislature, And Federal Waters In State V. Thomas, Christopher J. Rauscher
Maine Law Review
Consider the following: You, a Maine resident, and your friend, a Massachusetts resident, have gone for a weekend trout fishing trip to Acadia National Park in Downeast Maine. The two of you are happily catching trout, and then each of you hook a bass and reel it in. Keeping the bass is illegal under Maine law but not banned by the National Park. Along comes a Maine game warden, who spies the two of you and cites only you with a fine for catching and keeping the bass. The warden says nothing to the Massachusetts resident who continues to fish, …
Nineteenth Annual Frank M. Coffin Lecture On Law And Public Service: Community, Rights, And Climate: A Challenge To A Clever Species, Jonathan Lash
Nineteenth Annual Frank M. Coffin Lecture On Law And Public Service: Community, Rights, And Climate: A Challenge To A Clever Species, Jonathan Lash
Maine Law Review
I want to talk to you today about individual rights and community. I have been struck in reading the Judge’s books and recalling working with him how he honored two competing ideas simultaneously: respect for individual liberty, and a deep belief in the power of government to enhance fairness and promote public well-being. As I shall explain, the tension between those ideas has become increasingly important in the debate over how to address global environmental problems.
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
Maine Law Review
Boulder County, Colorado has been at the forefront of the environmental movement for decades. Starting with its citizens’ vote in 1967 to implement a tax specifically to preserve open space, the city has long been known for its progressive environmental policies. At the center of Boulder’s environmental protection efforts is a comprehensive system of land use regulations designed to mitigate the slow chokehold of ever-encroaching development on wetlands and open space, on groundwater and soils, and on wildlife and native species. Numerous communities across the country have followed Boulder’s much-praised model and enacted their own environmental zoning laws to protect …