Law Commons^™

Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman

Washington Law Review

This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions …

Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely

Washington Law Review

Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …

Reflection On Shale Gas Fracking Risk Assessment And Management In The United States, Yosra Abid

Washington Journal of Environmental Law & Policy

Hydraulic fracturing, or fracking, is the current technology of choice for developing most shale gas reserves. This technology allows increased production of natural gas from formerly inaccessible shale formations. One of the primary environmental impacts of concern for fracking is its potential to contaminate water.

This paper focuses on the potential risks affecting the drinking-water resources throughout the complete lifecycle of a drilled and fractured well. Given the significant environmental concerns, fracking risk assessment (what we know about the risk), and fracking risk management (what we wish to do about the risk) appear to be indispensable steps for the enactment …

A Big Fracking Deal: Pennsylvania's Departure From Traditional Rule Of Capture Interpretation Paves Way For Fracking Trespass Claims, Andrew Belack

Washington Journal of Environmental Law & Policy

This Comment explores the Pennsylvania Superior Court's rejection of the traditional rule of capture as it applies to oil extraction from adjacent land parcels using the hydraulic-fracturing method. At the time of writing, the Pennsylvania Superior Court's departure from the rule of capture has opened the door for trespass claims filed by an adjacent land owner, when oil under her property is extracted by a neighboring frack well. This Comment also examines the various health and environmental concerns that are consequent of the hydraulic-fracturing method of oil extraction.

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph A. Schremmer

Washington Law Review

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of …

Protecting Offshore Areas From Oil And Gas Leasing: Presidential Authority Under The Outer Continental Shelf Lands Act And The Antiquities Act, Robert T. Anderson

Articles

For over one hundred years, presidents of both parties have used executive power to protect America’s lands and waters. Until the second half of the twentieth century, however, little attention was given to protecting the marine ecosystem. Federal authority reaches out to two hundred miles or more in the oceans off the United States, covering an area known as the Outer Continental Shelf. Federal interest in the area historically focused on developing oil and gas reserves and ensuring that the area was open to trade and commerce. The area is also very important for indigenous subsistence uses and commercial and …

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management's Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

Articles

On March 26, 2015, the Bureau of Land management (BLM) published its Final Rule regarding Hydraulic Fracturing on Federal and Indian Lands (Final Rule). Work on the Rule had begun nearly four and a half years earlier as a way to update the agency’s outdated regulatory scheme to account for new fracking technology and growing public concern over the practice and potential safety concerns related to fracking.

The Final Rule amassed a number of procedural and substantive requirements for fracking operations and proposed to apply these standards uniformly to both public lands and lands held in trust by the Federal …

Proposed Indicators To Measure The Environmental Responsibiity Of Oil And Gas Companies And Regulatory Reforms To Improve Access To Information About Offshore Drilling, Wendy B. Jacobs, Aladdine D. Joroff

Washington Journal of Environmental Law & Policy

This paper suggests a set of indicators to evaluate and predict the environmental performance of companies proposing to drill for oil or gas in the U.S. Arctic and recommends mechanisms for improving public access to, and intra- and inter-agency sharing of, information from companies engaged in offshore drilling. We use the term “performance indicator” to refer to an observable metric that correlates with an aspect of an operator’s performance that is either too difficult to measure directly, or too broad to be reduced to a single, precisely quantifiable metric. Performance indicators can be used to compare an operator’s performance in …

Proposed Indicators To Measure The Environmental Responsibiity Of Oil And Gas Companies And Regulatory Reforms To Improve Access To Information About Offshore Drilling, Wendy B. Jacobs, Aladdine D. Joroff

Washington Journal of Environmental Law & Policy

This paper suggests a set of indicators to evaluate and predict the environmental performance of companies proposing to drill for oil or gas in the U.S. Arctic and recommends mechanisms for improving public access to, and intra- and inter-agency sharing of, information from companies engaged in offshore drilling. We use the term “performance indicator” to refer to an observable metric that correlates with an aspect of an operator’s performance that is either too difficult to measure directly, or too broad to be reduced to a single, precisely quantifiable metric. Performance indicators can be used to compare an operator’s performance in …

Oil Development In Anwr: The Precautionary Principle Is Compatible With The Fish And Wildlife Service's Statutory Mandate, Trisna Tanus

Washington Journal of Environmental Law & Policy

The potential for oil production in the Arctic National Wildlife Refuge (ANWR) coastal plain, otherwise known as the 1002 Area, is significant, with a current value of $770 billion. Yet, there are considerable knowledge gaps and disagreements over the environmental impacts of oil development in ANWR. The Fish and Wildlife Service (FWS) manages ANWR and is tasked with advancing the refuge’s mission of ecological conservation. Before it can approve oil development in ANWR, the FWS is statutorily required to ensure that oil development is compatible with ANWR’s mission. This Comment argues that the precautionary principle is embedded within the laws …

In The Wake Of Sakhalin Ii: How Non-Governmental Administration Of Natural Resources Could Strengthn Russia's Enery Sector, Nowell David Beckett Bamberger

Washington International Law Journal

Russia’s economically vital oil and gas industry is at a crossroads. Although foreign investment favored European nations in the wake of the Soviet collapse, in recent years American and European oil and gas companies have invested billions of dollars in Russia’s energy development and export distribution sectors. However, the 2006 restructuring of the $20 billion Sakhalin II project demonstrates that Russia’s energy sector has still not stabilized from the turbulent privatization of the 1990s. This comment explores the legal structures and Government policies affecting Russia’s oil and gas industry for evidence of the causes of institutional instability. It argues that …

Environmental Regulation Of Russia's Offshsore Oil & Gas Industry And Its Implications For The International Petroleum Market, Deborah K. Espinosa

Washington International Law Journal

Due to Northeast Asia's increasing energy demand, the Russian Far East's immense oil and gas reserves, and the close physical proximity between the two regions, international petroleum companies are exploring Russia's offshore petroleum reserves in the Far East. The Russian offshore industry, however, presents foreign investors with many legal uncertainties including exposure to environmental liabilities. This Comment suggests that Russia's environmental regulatory system, which includes a constitutional right to a healthy environment, presents international petroleum companies with a new set of circumstances to which they must adapt if Russian reserves are to satisfy Northeast Asia's rising energy needs. To do …

Resolution Iii Of The 1982 Convention On The Law Of The Sea And The Timor Gap Treaty, James K. Kenny

Washington International Law Journal

Australia and Indonesia signed the Timor Gap Treaty in 1989 as a means to jointly benefit from the petroleum reserves in the Timor Sea between East Timor and northwestern Australia without permanently resolving their dispute over seabed delimitation. The Treaty utilizes rights granted by the 1982 United Nations Convention on the Law of the Sea (UNCLOS III, 1982). Resolution III of the UNCLOS III provides the benefit of the Convention's rights to United Nations-recognized non-self-governing peoples, which includes the East Timorese people. Under Resolution III, the East Timorese are entitled to all of the Convention's rights, including sovereignty over natural …

The Outward Limit Of The Department Of Interior's Authority Over Submerged Lands—The Effect Of Customary International Law On The Outer Continental Shelf Lands Act, Donna Darm

Washington Law Review

After briefly establishing the relevant background of the controversy, this Comment suggests that neither the President's proclamation nor the new customary law of the EEZ operates to change domestic law and concludes that DOI's claim exceeds its authority under domestic law.

Comment On The Coal Lease Forfeiture Decision: The Hypothetical Case Of United States V. Peabody Coal Co., William H. Rodgers, Jr.

Articles

This Comment will (1) summarize the antitrust litigation that put Peabody in jeopardy of losing its leases under section 27 of the Mineral Lands Leasing Act of 1920, and (2) criticize the decision of the Justice Department to forego a test case, thus drastically narrowing by administrative fiat the coal lease forfeiture provisions of the Mineral Lands Leasing Act.

Revision Of The Japanese Mining Law Under The Occupation, Albert H. Solomon

Washington Law Review

In line with the policy of the Supreme Commander for the Allied Powers to democratize the mining industry of Japan, a study of existing mining law was undertaken in 1946 by a National Mining Law Revision Committee appointed by the Minister of Commerce and Industry (now Minister of International Trade and Industry). After four years of investigation, drafting, and redrafting of a revised Mining Bill, with technical assistance from a visiting mineral law expert from the United States and from lawyers and agricultural and forest economists employed in the Japanese government and in the Headquarters of SCAP, as well as …

The Status Of Mining Locations In Washington, Edward F. Medley

Washington Law Review

The growing importance of the mining industry in the State of Washington calls for a consideration of the decisions of the Supreme Court of the State as to the status of mining locations in the State. Are mining locations on unpatented land, the fee of which remains in the Federal government, real or personal property? The questions involved in considering the problem are many and various. Would property descend as real estate or be distributed as personal property in the case of the death of the owner ? Does our statute requiring brokers' agreements for the sale of real estate …