Law Commons^™

Emerging Best Practices In International Atmospheric Trust Case Law, Rachel M. Pemberton, Michael Blumm

Utah Law Review

With climate change litigation proliferating throughout the world, a substantial body of case law is emerging. As part of a project of the IUCN World Commission on Environmental Law's Climate Change Specialist Group, this Article, a version of which will be included in a “Judicial Handbook on Climate Litigation,” explains the public trust doctrine’s influence on climate change litigation internationally. We select what we view as judicial “best practices” as a kind of restatement of international atmospheric trust law in 2022. International atmospheric trust law is at the forefront of many best practices, as state and federal courts in the …

Pacific Salmon Law And The Environment: Treaties, Endangered Species, Dam Removal, Climate Change, And Beyond (Tables And Preface), Michael Blumm

Books & Contributions to Books

The law and policy of salmon protection and restoration are complex, and matters surrounding salmon implicate topics as varied as Indian treaty fishing rights, dam management and removal, international treaties, predator con­trol, and climate change. Pacific Salmon Law and the Environment chronicles the diverse issues concerning salmon allocation, management, and restoration in the 21st century, providing the historical understanding necessary for an accurate perspective of the present-day problems salmon face. The book is a must-read for ecologists, biologists, attorneys, educators, activists, students, and others concerned about the fate of salmon in the Pacific Northwest in the climate-challenged 21st century. More …

Sacrificing The Salmon: A Legal History Of The Decline Of Columbia Basin Salmon (Full Text Part 2 Of 2), Michael Blumm

Books & Contributions to Books

Salmon remain the cultural and economic soul of the Pacific Northwest, a species whose very life cycle largely defines the region. At the center of the salmon region lies the Columbia River, which once supported the world's largest salmon runs and which now is home to the world's largest interconnected hydroelectric system. These massive federal and non-federal dams have devastated Columbia Basin salmon runs, some of which are now extinct, others are on life-support.

This book tells the story of the decline of the Columbia Basin salmon in the 20th century. But it begins earlier, with the signing of mid-19th …

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 …

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 …

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 …

International Law And Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Although international law applicable to transboundary aquifers is still in an early stage of development, ground water resources on nation’s frontiers are now garnering growing international attention. This article examines the chief formal and informal mechanisms that have been proposed or implemented for the assessment, use, allocation, and protection of transboundary aquifers and identifies the legal trends and priorities emerging from these instruments. It also considers gaps and shortcomings in the emerging administrative regime and offers recommendations for the further development of the law.

Agenda: Flpma Turns 40, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

FLPMA Turns 40 (October 21)

The Bureau of Land Management (BLM) administers approximately 245 million acres of our public lands and yet, for most of our nation's history, these lands seemed largely destined to end up in private hands. Even when the Taylor Grazing Act of 1934 ushered in an important era of better managing public grazing districts and "promoting the highest use of the public lands," such use of our public lands still was plainly considered temporary, "pending its final disposal." It was not until 1976 with the passage of the Federal Land Policy and Management Act (FLPMA) that congress adopted a policy that …

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

Antimonopoly In Public Land Law, Michael Blumm, Kara Tebeau

Michael Blumm

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21^st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from …

Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang

Michael Blumm

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”

In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate …

Natural Resources Law: Private Rights And The Public Interest, Eric Freyfogle, Michael Blumm, Blake Hudson

Contributions to Books

This casebook offers a view of natural resources law rich in history, yet exposing students to the complexities of practicing natural resources law in the 21st century. Given that the focus of most Natural Resources Law casebooks is public lands and public law (often at the federal level), this casebook is unique in its primary focus on natural resource conflicts on private lands and its significant focus on private law (though public law is also a focus). While we include chapters on federal public lands and areas of federal primacy like wetlands regulation and endangered species protection, our focus is …

The Public Trust Doctrine In Environmental And Natural Resources Law, Second Edition, Mary C. Wood, Michael Blumm

Contributions to Books

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman law in the Justinian Code, was revived in medieval England largely through the efforts of Sir Mathew Hale, and became entrenched in American law in the nineteenth century through the process of statehood. In the twentieth century, the doctrine became a favorite of the law professoriate and the environmental community for its potential to recognize public rights in private property. Thus, the doctrine both promotes public access to trust resources and justifies public regulation of them. It also equips the public with the right …

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

Alyson Flournoy

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes. This effort …

Anti-Waste, Michael Pappas

Michael Pappas

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste. Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

The Underappreciated Role Of The National Environmental Policy Act In Wilderness Designation And Management, Michael Blumm, Lorena Wisehart

Faculty Articles

On its 50th anniversary, the Wilderness Act owes much to the effect of the National Environmental Policy Act (NEPA), both in terms of the number of acres in the national wilderness system and in the management of designated wilderness areas. Courts have closely scrutinized federal land management agency actions that threaten wilderness qualities — and this article maintains that the usual vehicle has been NEPA. Enacted a little over a half-decade after the Wilderness Act, NEPA was instrumental in the doubling of wilderness acres in the 1980s, as Congress added wilderness areas and released other areas to multiple uses in …

Endangered Species Act Listings And Climate Change: Avoiding The Elephant In The Room, Michael Blumm, Kya Marienfeld

Faculty Articles

The Endangered Species Act (ESA), with its reputation as the nation’s strongest environmental law, might be expected to impose some limits on greenhouse gas (GHG) emissions adversely affecting listed species due to rising global temperatures. Although the federal government recently ended a long period of denial by conceding that some species warrant listing because of climate change, the accompanying listing decisions revealed a federal refusal to apply the ESA to constrain GHG emissions causing the listings. In this article, we explain those decisions — involving the American pika, the polar bear, the wolverine, and the Gunnison sage-grouse — and their …

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm

Michael Blumm

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …

Climate Change And Water Transfers, Christine A. Klein

Christine A. Klein

Climate change adaption is all about water. Although some governments have begun to plan for severe water disruptions, many have not. The consequences of inaction, however, may be dire. As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.” In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, state-by-state survey of water allocation law and its …

Agenda: A Life Of Contributions For All Time: Symposium In Honor Of David H. Getches, University Of Colorado Boulder. School Of Law, University Of Colorado Law Review

A Life of Contributions for All Time: Symposium in Honor of David H. Getches (April 26-27)

On April 26-27, 2012, Colorado Law honored David H. Getches with a symposium to celebrate his life and legacy of trailblazing scholarship. “A Life of Contributions for All Time” featured a keynote address by Distinguished Professor Charles Wilkinson entitled, “Hero for the People, Hero for the Land and Water: Reflections on the Enduring Contributions of David Getches.” Top scholars in the fields of natural resources, water, and American Indian law reflected on Dean Getches’ contributions and their own insights into these fields, including Professor John Leshy, John Echohawk, Professor Carole Goldberg, Professor Joe Sax, Professor Rebecca Tsosie, Justice Greg Hobbs, …

The Story Of Kleppe V. New Mexico: The Sagebrush Rebellion As Un-Cooperative Federalism, Robert L. Fischman, Jeremiah Williamson

Articles by Maurer Faculty

The story of Kleppe v. New Mexico dramatizes how assertion of federal power advancing national conservation objectives collided with traditional, local economic interests on public lands in the 1970s. This article connects that history with current approaches to natural resources federalism. New Mexico challenged the Wild Free-Roaming Horses and Burros Act, which diminished both state jurisdiction and rancher influence over public rangelands. In response, the Supreme Court resoundingly approved federal authority to reprioritize uses of the public resources, including wildlife, and spurred a lasting backlash in the West. Further legislation passed in the wake of Kleppe transformed this unrest into …

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

UF Law Faculty Publications

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes.

This effort …

Seeing The Forest For The Treaties - Evolving Debates On Cdm Forest And Forestry Project Activities 10 Years After The Kyoto Protocol, Romulo Sampaio

Elisabeth Haub School of Law Student Publications

No abstract provided.

Slides: A Case Study Of The Roan Plateau Area, Mary Viviano

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mary Viviano, EnCana Oil & Gas (USA) Inc.

14 slides

The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"John Nagle, Univ. of Notre Dame Law School" -- Agenda