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Full-Text Articles in Law
Out The Smokestack: Retooling California's Marine Vessel Rules For Federal Authorization, Seth Mansergh
Out The Smokestack: Retooling California's Marine Vessel Rules For Federal Authorization, Seth Mansergh
Golden Gate University Law Review
To illustrate how California can effectively regulate the emissions from auxiliary engines on ocean-going vessels, Part I will provide an overview of California's regulatory authority in this area. It will then illustrate how CARB responded to the harms caused by the regulatory failures at the international and national level with the Marine Vessel Rules. Part II provides an overview of the Marine Vessel Rules and the procedural history that led to the Ninth Circuit's decision in Pacific Merchant. Part III examines the reasoning of Pacific Merchant in determining the Marine Vessel Rules were a preempted emission standard. Part IV discusses …
Natural Resources Defense Council V. Environmental Protection Agency: A Call For Evenhanded Application Of The Clean Water Act Of 1972, Mary Lim
Golden Gate University Law Review
In Natural Resources Defense Council v. EPA ("NRDC v. EPA"), the Natural Resources Defense Council ("NRDC") challenged the EPA's permit exemption for oil and gas construction sites as a violation of the CWA, claiming that the exemption was inconsistent with the CWA's goal of protecting the nation's waters. The United States Court of Appeals for the Ninth Circuit held that the EPA's rule was arbitrary and capricious in light of the EPA's consistent, long-standing position of requiring permits for sediment discharges. In addition, the Ninth Circuit supported its reasoning with the fact that Congress did not specifically mention the term …
Dirty Property For Dirt Cheap: Cgl Coverage For The Diminished Value Of Contaminated Sites Under Goodstein V. Continental Casualty Co., Daniel S. Cho
Dirty Property For Dirt Cheap: Cgl Coverage For The Diminished Value Of Contaminated Sites Under Goodstein V. Continental Casualty Co., Daniel S. Cho
Golden Gate University Law Review
In Goodstein v. Continental Casualty CO., the United States Court of Appeals for the Ninth Circuit held that the diminution in sale value of property due to pollution does not constitute "property damage" under a comprehensive general liability insurance policy where the sale contract did not require the buyer to remediate as a condition of the sale. In so holding, the court found that diminished property value is not "physical injury to tangible property," nor is it "damage" that the "insured shall become legally obligated to pay" because of "property damage." However, without determining whether the mere designation of property …
Section 401 Of The Clean Water Act And Its Application To Nonpoint Source Pollution In California, Scott Smithline
Section 401 Of The Clean Water Act And Its Application To Nonpoint Source Pollution In California, Scott Smithline
Golden Gate University Law Review
This note addresses the Dombeck opinion and its relation to the State of California's nonpoint source water pollution. A brief description of Section 401 provides contextual support for the court's holding in Dombeck. In addition, the full impact of the Dombeck decision on California water quality cannot be understood without a discussion of the current nonpoint source pollution issues, and pollution control mechanisms currently in place on federal lands within California. Therefore, a brief analysis of nonpoint source pollution issues and policy (generally in the context of grazing) will precede the Dombeck case analysis.
Environmental Law - Resource Investments, Inc. V. U.S. Army Corps Of Engineers, Marcelin E. Keever
Environmental Law - Resource Investments, Inc. V. U.S. Army Corps Of Engineers, Marcelin E. Keever
Golden Gate University Law Review
In Resource Investments Inc. v. United States Army Corps of Engineers, the United States Court of Appeals for the Ninth Circuit considered whether section 404 of the Clean Water Act (CWA) authorized the United States Army Corps of Engineers (Corps) to require a landowner to obtain a dredge and fill permit from the Corps before constructing a municipal solid waste landfIll on a wetlands site. The Court held that when a proposed project affecting a wetlands area is a solid waste landfill, the Environmental Protection Agency (EPA), rather than the Corps, will have permit authority under the Resource Conservation and …
Environmental Law - Northcoast Environmental Center V. Glickman, Lisa Braly
Environmental Law - Northcoast Environmental Center V. Glickman, Lisa Braly
Golden Gate University Law Review
In Northcoast Environmental Center v. Glickman, the United States Court of Appeals for the Ninth Circuit held that a less deferential standard of "reasonableness" applied to its review of legal questions that determined the applicability of the National Environmental Policy Act (NEPA,). Thus, when no facts are in dispute, an agency's decision not to prepare an Environmental Impact Statement (EIS)"will be upheld unless it is unreasonable. When facts are in dispute, however, the Supreme Court decision of Marsh v. Oregon Natural Resources Council, which applied an "arbitrary and capricious" standard of review, controls. The Ninth Circuit also decided that district …
Environmental Law - City Of Auburn V. U.S. Government, Lisa Braly
Environmental Law - City Of Auburn V. U.S. Government, Lisa Braly
Golden Gate University Law Review
In City of Auburn v. U.S. Government; the United States Court of Appeals for the Ninth Circuit held that the plain language of the Interstate Commerce Commission Termination Act (lCCTA) preempts state and local permitting laws regarding railroad operations. The court reasoned that since the ICCTA gave the Surface Transportation Board (Board), a federal agency, exclusive jurisdiction over certain railroad matters, railroad companies were required to follow only federal permitting laws, not those of a state or city. Thus, Burlington Northern Railroad is not subject to the environmental permitting laws of the city of Auburn. The court also held that …
Citizens For A Better Environment V. Union Oil Company Of California: Keeping Citizen Suits Alive In The Face Of Inadequate State Government Enforcement, Frank M. Howard
Citizens For A Better Environment V. Union Oil Company Of California: Keeping Citizen Suits Alive In The Face Of Inadequate State Government Enforcement, Frank M. Howard
Golden Gate University Law Review
This note examines the Ninth Circuit's ruling on Union Oil's settlement payment and the comparability of the applicable state law to the Clean Water Act's administrative penalties provision. In so doing, this note also offers background on the Clean Water Act's citizen suit and administrative penalties provisions and discusses their applicability to the Ninth Circuit's holding.
Did United States V. Hayashi Fail To Provide A Safe Harbor For Marine Mammals Under The Marine Mammal Protection Act?, April Fisher, Amber A. Bell
Did United States V. Hayashi Fail To Provide A Safe Harbor For Marine Mammals Under The Marine Mammal Protection Act?, April Fisher, Amber A. Bell
Golden Gate University Law Review
This note focuses on one such instance where a court erred in interpreting a key term in the MMPA. In United States v. Hayashi, the Ninth Circuit, sitting en bane, found that a fisherman who shot at porpoises to deter them from his catch did not commit a "taking" under the MMPA. The court held that to constitute a criminal "taking" under the MMPA, harassment of a marine mammal must entail direct and serious disruptions of normal mammal behavior. This decision may result in further exploitation and suffering of marine mammals.